[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Notices]
[Pages 30780-30795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15223]
[[Page 30779]]
_______________________________________________________________________
Part VII
Department of Defense
_______________________________________________________________________
Department of the Army
Corps of Engineers
_______________________________________________________________________
Nationwide Permits: Issuance, Reissuance, and Modification; Public
Hearings; Notice
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 /
Notices
[[Page 30780]]
DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
Proposal To Issue, Reissue, and Modify Nationwide Permits; Public
Hearing
AGENCY: U.S. Army Corps of Engineers, DOD.
ACTION: Notice of intent and request for comments.
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SUMMARY: The Corps of Engineers is proposing to reissue the existing
nationwide permits (NWPs) and conditions, with some modifications, and
issue four new NWPs. We are also proposing options for the threshold
limits for NWP 26.
The public is invited to provide comments on these proposals and is
being given the opportunity to request public hearings on the NWPs. The
Corps of Engineers will hold a public hearing at the National Guard
Association Building, at One Massachusetts Ave, NW, Washington, DC on
July 17, 1996, at 10:00 AM and end at 4:00 PM or before, if all
speakers present have had an opportunity to speak. This hearing is
opened to the public. Comments may be submitted in person at the
hearing or in writing to the Office of the Chief of Engineers at the
address given below. The hearing record will remain open until August
1, 1996. The legal authority for this hearing is section 404 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. 403).
DATES: Comments must be received by August 16, 1996.
ADDRESSES: National comments should be submitted in writing to: Office
of the Chief of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW,
Washington, DC 20314-1000. Regional comments should be sent to the
appropriate Corps District offices at the addresses listed below.
Comments will be available for examination at the Office of the Chief
of Engineers, Room 6225, Pulaski Building, 20 Massachusetts Avenue NW,
Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. Tim Zimmerman or Mr. Sam
Collinson, Regulatory Branch, Office of the Chief of Engineers at (202)
761-0199.
SUPPLEMENTARY INFORMATION:
Background
The White House Office on Environmental Policy announced the
President's Wetlands Plan on August 24, 1993. The plan sets forth a
comprehensive package of improvements to the Federal wetlands
protection programs. A major goal of the plan is that the programs be
fair, flexible, and effective. To achieve this goal, the Corps
regulatory program must continue to provide effective protection for
wetlands and other aquatic resources, while conveying to the public a
clear understanding of regulatory requirements. In its implementation,
the regulatory program must be administratively efficient, flexible yet
predictable, and avoid unnecessary impacts to private property, the
regulated public, and the environment.
There are 37 existing nationwide permits. Thirty-six of the NWPs
were published in the November 22, 1991, Federal Register at 33 CFR
Part 330, Appendix A. They became effective on January 21, 1992, and
expire on January 21, 1997. One additional NWP, the Single-Family
Housing NWP (NWP 29), was published in the Federal Register on July 27,
1995, and became effective on September 25, 1995. NWP 29 will expire on
September 25, 2000.
In the preamble of the Final Rule at 33 CFR Part 330 as published
in the Federal Register (56 FR 59110) on November 22, 1991, we
indicated that upon expiration of the existing NWPs, we would issue the
NWPs separately from the regulations governing their use and rescind 33
CFR Part 330, Appendix A. The NWPs will now be published using the
procedures adopted in November 22, 1991, for issuance, reissuance,
modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will
no longer appear in the Code of Federal Regulations but will be
published in the Federal Register and announced, with regional
conditions, in the public notices issued by Corps district offices.
We are proposing to reissue all the existing NWPs. We are also
proposing to modify several existing NWPs and several NWP conditions as
published in the Federal Register (56 FR 59110-47) on November 22, 1991
to clarify activities that are authorized by NWPs and those that are
not. Several of the proposed clarifications are a result of the
modification of the definition of discharge of dredged material at 33
CFR Part 323.2(d) as published in the Federal Register (58 FR 45008-38)
on August 25, 1993 (i.e., the excavation rule). The definition was
revised to clarify that certain excavation activities are regulated and
included the following language: ``(iii) Any addition, including any
redeposit, of dredged material, including excavated material, into
waters of the United States which is incidental to any activity,
including mechanized landclearing, ditching, channelization, or other
excavation.'' (See 33 CFR 323.(d) for the complete definition of
discharge of dredged material).
We are also proposing, in accordance with the President's Wetlands
Plan, four new NWPs to authorize those additional regulated activities
with minimal effects that resulted from the excavation rule. These new
NWPs include: A. Moist Soil Management for Wildlife; B. Food Security
Act Minimal Effect Exemptions; C. Minor Mining Activities; and D.
Maintenance of Existing Flood Control Projects.
The Corps believes, that when these changes are considered as a
whole, the average approval time for projects requiring a Department of
the Army permit will not change. However, the individual approval time
for some projects will be longer while others will be shorter. In
addition, we believe that the approval time for a vast majority of
nationwide permits will not be affected by these changes.
Regional Conditioning of Nationwide Permits
Concurrent with this Federal Register notice, District Engineers
are issuing local public notices. In addition to the changes to NWP
conditions being proposed by the Chief of Engineers, the Division and
District Engineers may propose regional conditions or propose
revocation of NWP authorization for all or some or portions of the
NWPs. Regional conditions may also be required by state Section 401
water quality certification or for state coastal zone consistency.
Comments on regional issues and regional conditions should be sent to
the appropriate District Engineer as indicated below.
ALABAMA
Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288,
Mobile, AL 36628-0001
ALASKA
Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898,
Anchorage, AK 99506-0898
ARIZONA
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711,
Los Angeles, CA 90053-2325
ARKANSAS
Little Rock District Engineer, ATTN: CESWL-CO-R, P.O. Box 867,
Little Rock, AR 72203-0867
CALIFORNIA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-4794
COLORADO
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109-3435
CONNECTICUT
[[Page 30781]]
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
DELAWARE
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square, East Philadelphia, PA 19107-3390
FLORIDA
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
GEORGIA
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889
HAWAII
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230,
Fort Shafter, Honolulu, HI 96858-5440
IDAHO
Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602,
City-County Airport, Walla Walla, WA 99362-9265
ILLINOIS
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2004,
Rock Island, IL 61201-2004
INDIANA
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
IOWA
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2204,
Rock Island, IL 61201-2004
KANSAS
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
KENTUCKY
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
LOUISIANA
New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267
MAINE
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
MARYLAND
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
MASSACHUSETTS
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
MICHIGAN
Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027,
Detroit, MI 48231-1027
MINNESOTA
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
MISSISSIPPI
Vicksburg District Engineer, ATTN: CELMV-CO-O, P.O. Box 80,
Vicksburg, MS 39180-0080
MISSOURI
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
MONTANA
Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE
68101-0005
NEBRASKA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th
Street, Omaha, NE 68101-4978
NEVADA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
NEW HAMPSHIRE
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
NEW JERSEY
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East, Philadelphia, PA 19106-2991
NEW MEXICO
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109-3435
NEW YORK
New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits
Federal Building, New York, NY 10278-0090
NORTH CAROLINA
Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
NORTH DAKOTA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
OHIO
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
OKLAHOMA
Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa,
OK 74121-0061
OREGON
Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946,
Portland, OR 97208-2946
PENNSYLVANIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
RHODE ISLAND
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
SOUTH CAROLINA
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
SOUTH DAKOTA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
TENNESSEE
Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
TEXAS
Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300,
Ft. Worth, TX 76102-0300
UTAH
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
CA 95814-4794
VERMONT
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
Road, Waltham, MA 02254-9149
VIRGINIA
Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street,
Norfolk, VA 23510-1096
WASHINGTON
Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-2255
WEST VIRGINIA
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
WISCONSIN
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
WYOMING
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th
Street, NE 68102-4978
DISTRICT OF COLUMBIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
PACIFIC TERRITORIES
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230,
Fort Shafter, Honolulu, HI 96858-5440
PUERTO RICO & VIRGIN IS
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
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 state CZM Plan.
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 water quality standards or consistency with state
CZM Plans. The Corps goal is to
[[Page 30782]]
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, tribes, and EPA following publication of this proposal to
discuss issues of concern and identify regional modifications 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 a state programmatic general permit (SPGP)
has been adopted and the NWPs have been wholly or partially revoked.
Simultaneous with today's proposal, Corps Districts may be proposing
modification or revocation of the NWP 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.
Section 401 water quality certification requirements fall into the
following general categories:
NWPs numbered 1, 2, 8, 9, 10, 11, 24, 28 and 35 do not require 401
water quality certification since they would authorize activities
which, in the opinion of the Corps, could not reasonably be expected to
result in a discharge and in the case of NWP 8 is seaward of the
territorial seas.
NWPs numbered 3, 4, 5, 6, 7, 13, 14, 19, 20, 21, 22, 23, 27, 32,
33, 36, 37, 38, and D 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 in this category affects only those activities
which may result in a discharge. For those activities not involving
discharges, the NWP remains in effect.
NWPs identified as 12, 15, 16, 17, 18, 25, 26, 29, 34, 40, A, B,
and C, involve activities which would result in discharges and
therefore 401 water quality certification is required.
If the state denies a 401 water quality certification for certain
activities within that state, then the Corps will deny authorization
for those activities without prejudice. Anyone wanting to perform such
activities 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 this 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 CZMA consistency determination
for certain activities, then the Corps will deny authorization for
those activities without prejudice. Anyone wanting to perform such
activities 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 Modifications to Existing Nationwide Permits
The proposed changes to the existing NWPs fall into three
categories:
Category I (Cat I)--Clarification of existing NWPs to address
questions and issues that have arisen since the NWPs were issued in
1991. It does not change the number and types of activities now
authorized by the NWP.
Category II (Cat II)--Changes to existing NWPs due to the
modification of the definition of discharge of dredged material in the
Excavation Rule, as published in the Federal Register on August 25,
1993 (58 FR 45008-38). These NWPs involve activities that previously
only required Section 10 authorization but are now regulated under
Section 404 as well. These proposed changes will not change the number
and type of activities now authorized by the NWP.
Category III (Cat III)--Modifications to existing NWPs that change
the number of activities authorized under these NWPs.
The following is a discussion of our reasons for modifying existing
NWPs. If an existing NWP is not listed, we are not proposing to change
it but to reissue the current NWP.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. (Cat I) We are clarifying that NWP 4 does not
authorize the use of covered oyster trays or clam racks.
6. Survey Activities. (Cat III) The Corps is proposing to allow
discharges of dredged or fill material and placement of structures
necessary to complete a survey for historic resources, but not for
discharges or structures necessary for the actual recovery of the
artifacts/information. The Corps is also proposing to authorize
activities necessary to conduct soil surveys and sampling. This NWP
does not authorize the placement of any permanent structures.
8. Oil and Gas Structures. (Cat I) We are clarifying that any Corps
review of this NWP, that may be required by discretionary authority, is
limited to the effects on navigation and national security as stated in
33 CFR 322.5(f).
12. Utility Line Discharges. (Cat I and II) We are proposing to
modify the wording of this NWP to include the discharge of material
resulting from the trench excavation. We are also soliciting comments
on whether limitations should be established for discharges into
special aquatic sites. Also included is clarification concerning
parallel structures to waterbodies and mechanized landclearing of
right-of-ways for utility lines located below the surface of waters of
the United States to the minimum necessary.
16. Return Water From Upland Contained Disposal Areas. (Cat II) The
Corps proposes to modify the wording of this NWP to note dredging may
now require a Section 404 permit.
18. Minor Discharges. (Cat I) We are proposing to modify the
wording of this NWP to include the volume of any excavated area as a
measurement of the quantity of discharge.
19. Minor Dredging. (Cat II) We are proposing to modify this NWP to
authorize under section 404 of the Clean Water Act, the incidental
discharges associated with the dredging activity. However, this NWP
does not apply in Section 404 only waters. Furthermore, it does not
apply in wetlands, coral reefs, sites that support submerged aquatic
vegetation, or anadromous fish spawning area. NWPs 18 and 19 may be
combined in Section 10 only waters (i.e., navigable waters of the
United States). For example, because
[[Page 30783]]
Notification is not required for NWP 18 under 10 cubic yards, a total
of 35 cubic yards may be excavated from a navigable water of the U.S.
(i.e., Section 10 water) using a combination of NWPs 18 and 19, without
notification. Excavation greater than 35 cubic yards but less than 50
cubic yards require notification.
21. Surface Coal Mining Activities. (Cat III) We are considering
expanding this NWP for mining activities on previously mined lands that
have not been subject to restoration. Currently, there is a
disincentive for mining companies to use an area that has been impacted
by previous mining activities, where wetlands have naturally
established. In such cases, mining companies are generally required as
a condition of the permit to mitigate off-site prior to or early in the
mining operation. These previously mined areas are generally degraded
and of poor quality. While in some cases, the wetlands may be of good
quality, the overall area remains degraded. We are proposing to add a
provision that when previously mined lands are used and wetlands have
naturally established, any mitigation requirements would be limited to
onsite mitigation to occur at the completion of the work. A performance
bond would be required to ensure the restoration occurs. The purpose of
this provision would be to encourage the mining of previously mined
areas that are degraded rather than the mining of new areas. Under this
proposal, previously degraded mined areas would be restored upon
completion of the subsequent mining operation. We have not proposed
specific language and are seeking comments recommending the terms and
conditions for this proposed addition to this NWP.
25. Structural Discharges. (Cat I and II) We are clarifying that
this NWP may be utilized for general navigation purposes, such as the
construction of mooring cells and some excavation activities necessary
for construction of the structure.
26. Headwaters and Isolated Waters Discharges. (Cat III) To provide
additional time for review and to better ensure project effects are
minimal, we are proposing to increase the 30- day pre-construction
notification (PCN) process to a 45-day PCN. The maximum time frame will
allow for review and evaluation of effects of a project when necessary
to ensure that the project effects are minimal. We expect that the
increased time will only be used in a minority of the NWP 26 PCNs and
then generally only when necessary to analyze the acceptability of
developing adequate mitigation. We believe that the average processing
time for NWP PCNs will continue to be under 30 days. In addition, the
Corps is considering changing the acreage threshold limits of NWP 26.
Currently, activities that affect less than one acre may proceed
without notifying the Corps, activities affecting 1 to 10 acres require
a PCN, and activities affecting over 10 acres may not be authorized by
this NWP. The Corps is proposing 3 options for the acreage limits that
would define when a PCN must be submitted. We are requesting comments
on these options which are as follows:
Option 1: 1 to 10 acres (current thresholds)
Option 2: \1/2\ to 5 acres
Option 3: \1/3\ to 3 acres
Based on a survey of Corps field offices using FY94 data, the
estimated numbers of additional activities that would require a PCN are
3700 for Option 2 and 5200 for Option 3 annually. However, while not
required to, many of these projects are now requesting a verification
from the Corps without the guarantee of a decision time frame. The PCN
would provide that guarantee. In addition, in several Corps districts,
the states have denied Section 401 water quality certifications for the
larger projects. Furthermore, in some states, the Corps has issued
state programmatic general permits based on state programs that have
lower limits. The Corps does not believe that this proposal would
result in many more individual permits. The Corps anticipates that most
of these PCN activities, as with the verification requests that are
currently being submitted for projects impacting less than 1 acre of
waters of the United States, will be authorized by NWP 26. The
increased review will increase environmental protection and increase
consistency for projects below 1 acre of effects to waters of the
United States.
To offset the additional workload and to expedite the review that
either Option 2 and 3 may generate for some Districts, the PCN for
projects affecting between the minimum threshold (\1/2\ or \1/3\) and 1
acre would not require coordination with the resource agencies.
Finally, the Corps believes that this proposal together with all the
changes proposed today will not increase the Corps average processing
time for general permits but will provide for increased environmental
protection.
Regionalization of NWP 26: As noted in the President's Plan, the
Corps will initiate a process to regionalize this NWP following a
decision regarding which threshold option is adopted. The
regionalization of NWP 26 will further improve its effectiveness. The
Corps, in coordination with appropriate Federal, State, Tribal agencies
and the public, will conduct a field level review for the purpose of
identifying, on a regional basis, the types of waters and activities
that would be authorized by this NWP. This approach was developed after
careful consideration of several alternatives. Regionalization of NWP
26 has several advantages including the ability to appropriately
condition this general permit to reflect the more local environmental
conditions within each state or region, and facilitate State/Tribal (or
EPA) certification of the permit.
The Corps recognizes that fewer than half the states have issued
section 401 certification for the existing NWP 26. As part of the
discussions that would be initiated by the Corps districts with their
respective states, tribes, and EPA to address issues related to Section
401 certification, the Corps would work with the parties to determine
what modifications can be made on a regional basis to NWP 26, in terms
of acreage limits, types of waters, notification, and authorized
activities.
27. Wetland and Riparian Restoration and Creation Activities. (Cat
II and III) The Corps proposes to modify this NWP to allow projects to
occur on any Federal lands. Projects occurring on private land will
still be permitted provided there is a binding contract between the
landowner and the Federal Government which describes the long term
management goals of the project. Projects occurring on Federal land by
Federal agencies would be allowed after review and approval of the
Operation and Maintenance Plan for the project. Also, we are
considering expanding this NWP to allow for the creation of wetlands
and their subsequent reversion on reclaimed surface coal mined lands
provided the wetlands were voluntarily created under an Office of
Surface Mining (OSM) permit or an applicable state program permit. OSM
has estimated that thousands of acres of wetlands could be created each
year most of which would be left undisturbed permanently. This would
not apply to wetlands created as mitigation for the mining permit, nor
to wetlands or waters that would be created due to hydrologic or
topographic features of the landscape, and nor to wetlands created for
a mitigation bank. We have not proposed specific language and are
seeking comments recommending the terms and condition for this NWP.
We are also seeking comments on whether (1) to eliminate the 5 year
window of reversion opportunity and
[[Page 30784]]
allow the reversion to occur at any time in the future; (2) to allow
use of this NWP to any voluntary restoration/creation project; (3) to
include enhancement as an option; and (4) to require a written
agreement in all cases, even where voluntary restoration is occurring
under other Federal or State programs without a written agreement. If
we should require a written agreement in such cases, who should approve
it and when? If there is no written agreement requirement, how should
the baseline be documented and should there be a time limit for any
reversion to take place?
29. Single-Family Housing NWP. This NWP was published for public
comment in the March 23, 1995, Federal Register (60 FR 15439) and
became effective on September 25, 1995 (60 FR 38650). We are now
proposing to reissue this NWP. This will put all the NWPs on the same
five-year review cycle. We are proposing to modify the notification
process so that it will be the same as other NWPs and to provide for
resource agency coordination during the notification review process. We
are not, at this time, proposing any other modifications to this NWP.
Should we not reissue NWP 29 at this time, it will remain in effect
until it expires on September 25, 2000 unless modified, suspended, or
revoked sooner.
We are, however, interested in your comments concerning the impacts
of this NWP. We continue to believe that this NWP provides relief to
small landowners with minimal effects on the aquatic environment. Since
its issuance, we have tracked the use of this NWP. For the first two
quarters (October 1995-March 1996), NWP 29 was used a total of 123
times nationwide resulting in only 27.1 acres of wetland impacts. This
use and acreage amount was well below what we initially estimated. We
will continue to track the use of this NWP to insure the effects are
minimal.
32. Completed Enforcement Work. (Cat III) The Corps is proposing
several changes to this NWP. First, we are proposing to expand the
scope beyond judicial enforcement actions to include agreements
resulting from Corps negotiated settlements that are not a part of
judicial actions, provided that such final agreements satisfy the
specific criteria set out in paragraphs (i) (A)-(C) of the proposed
permit. By setting out standards limiting the extent of the
unauthorized activity and ensuring that the overall effect of the final
agreement is, at a minimum, no net loss of wetlands, subpart (i) of the
proposed NWP satisfies the ``minimal effects'' threshold for issuance
of NWPs. This subpart also clarifies that obtaining an agreement does
not grant automatic coverage under this NWP. A written verification
from the District Engineer is required.
This expansion of NWP 32 would eliminate a duplication of our
evaluation efforts. Currently, we begin the enforcement action, in
accordance with 33 CFR 326, with a thorough evaluation process, usually
involving full agency coordination. This process often leads to an
agreement which may include restoration and mitigation. In such cases,
we then reevaluate the action through a second evaluation process
usually leading to issuance of an after-the-fact (ATF) permit. This NWP
would eliminate the need for the second evaluation process for those
actions that would qualify for the NWP. This, in turn, would reduce the
need for those ATF permits that consume permit application processing
resources without providing an appreciable environmental benefit. The
ATF permit process still remains a valuable tool in the enforcement
program as a way to resolve those violations that could not be resolved
through a settlement agreement and do not warrant judicial action.
The other changes to this NWP apply to both judicial decisions and
agreements and nonjudicial administrative enforcement settlements. They
clarify that compliance with the underlying judicial or administrative
decision or agreement is a condition of the NWP itself and that the
only future activities authorized under this permit are those
undertaken to complete the restoration and/or mitigation in compliance
with such decision or agreement.
The Corps is also considering providing that EPA administrative
settlement agreements could be authorized under this NWP. We are
seeking comments concerning whether this would be appropriate and if
so, what conditions, if any, would be appropriate.
33. Temporary Construction, Access and Dewatering. (Cat I and II)
We are proposing to add the provision from recent guidance stating that
this NWP could be used for construction activities not subject to
either the Corps or U.S. Coast Guard regulations. We also propose to
allow the use of on-site dredged material for temporary fills, at the
discretion of the District Engineer. Also, the last sentence of this
NWP as it currently exists will be deleted. As a result of the
Excavation Rule, we now regulate both mining activities and
construction of marina basins in Section 404 areas; therefore, this
provision is no longer applicable.
38. Cleanup of Hazardous and Toxic Waste. (Cat I) The Corps
proposes to clarify which projects approved under CERCLA do not require
authorization under sections 10 and 404.
40. Farm Buildings. (Cat I) The reference to the ``Minimization''
Condition is being corrected to reflect its current title,
``Mitigation'' Condition. We are also proposing to delete
``agricultural related structures necessary for farming activities'' to
clarify that we intend that this NWP is for authorization of farm
buildings such as agricultural sheds, supply storage, animal housing,
and production facilities located on a farm or ranch.
The following is a discussion of the new NWPs we are proposing to
issue. We have identified these NWPs by letters for the purposes of
proposing these NWPs. If issued, they would be placed at a reserved NWP
number or given a new number.
A. Moist Soil Management for Wildlife. The Corps is proposing to
authorize discharges of dredged or fill material into non-tidal
wetlands necessary to manage, construct, and/or maintain habitat and
feeding areas for wildlife. This NWP applies to Federally-owned or
managed and State-owned or managed property. Currently, certain
management practices (discing, plowing, mechanized land clearing, etc.)
require site specific authorization even though the discharge of
dredged material is for the enhancement/maintenance of the aquatic
area. Some wildlife management practices were not consistently
regulated until 1993. In an effort to reduce the effect of the changes
on the regulation of minor activities with only minimal adverse
environmental effects due to the excavation rule, this proposal will
allow the management of existing wildlife areas to proceed without
unnecessary review by various agencies. This proposal will also further
the goal of the President's Wetlands Plan to reduce duplication among
regulatory agencies. This will, of course, still allow for the use of
discretionary authority when very sensitive/unique areas may be
adversely effected by these activities.
B. Food Security Act Minimal Effect Exemptions. As noted in the
President's Wetland Plan, the Corps is proposing a NWP for discharges
of dredged or fill material into waters of the United States associated
with certain minimal effect determinations, that are exemptions from
the Food Security Act, as determined by the Natural Resources
Conservation Service (NRCS) in accordance with a written agreement
between the NRCS and the landowner. This NWP also authorizes any
[[Page 30785]]
mitigation for these exemptions that is required by the written
agreement.
The goal of the President's Wetland Plan is to produce one-stop-
shopping and reduce the differences between programs to the extent
practicable. In this regard, the Corps believes that some NRCS
exemptions would qualify for authorization under a NWP while others
would not. We are not proposing specific language for the NWP. We are
requesting public comments suggesting limitations or restrictions for
this NWP in order to insure effects are minimal. The final language
would be based on Section 322 of the 1996 Farm Bill, NRCS regulations,
and comments submitted regarding limitations and/or thresholds that
should be established to ensure that these activities meet the
requirements for issuance of NWPs. To assist you in providing us
comments on this NWP, we have included the following excerpt from
Section 322 of the 1996 Farm Bill (H.R. 2854) which discusses the
minimal effect determination:
* * *The minimal effect exemption will apply when the Secretary
(of the U.S. Department of Agriculture) has determined that 1 or
more of the following conditions exist:
(1) The action, individually and in connection with all other
similar actions authorized by the Secretary in the area, will have a
minimal effect on the functional hydrological and biological value
of the wetlands in the area, including the value to waterfowl and
wildlife.
(2) The wetland and the wetland values, acreage, and functions
are mitigated by the person through the restoration of a converted
wetland, the enhancement of an existing wetland, or the creation of
a new wetland, and the restoration, enhancement, or creation is--
(A) In accordance with a wetland conservation plan;
(B) In advance of, or concurrent with, the action;
(C) Not at the expense of the Federal Government;
(D) In the case of enhancement or restoration of wetlands, on
not greater than a 1-for-1 acreage basis unless more acreage is
needed to provide equivalent functions and values that will be lost
as a result of the wetland conversion to be mitigated;
(E) In the case of creation of wetlands, on greater than a 1-
for-1 acreage basis if more acreage is needed to provide equivalent
functions and values that will be lost as a result of the wetland
conversion that is mitigated;
(F) on lands in the same general area of the local watershed as
the converted wetland; and
(G) with respect to the restored, enhanced, or created wetland,
made subject to an easement that--
(i) Is recorded on public land records;
(ii) Remains in force for as long as the converted wetland for
which the restoration, enhancement, or creation to be mitigated
remains in agricultural use or is not returned to its original
wetland classification with equivalent functions and values; and
(iii) Prohibits making alterations to the restored, enhanced, or
created wetland that lower the wetland's functions and values.
(3) The wetland was converted after December 23, 1985, but
before November 28, 1990, and the wetland values, acreage, and
functions are mitigated by the producer through the requirements of
subparagraphs (A), (B), (C), (D), (F) and (G) of paragraph (2).
(4) The action was authorized by a permit issued under section
404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) and
the wetland values, acreage, and functions of the converted wetland
were adequately mitigated for the purposes of this subtitle.
C. Mining Operations. The Corps is proposing to authorize certain
work and/or discharges of dredged material incidental to active mining
of sand and gravel and recreational mining.
Paragraph a. of the proposed NWP will allow certain operations
existing before August 1993, where the effects have already occurred,
some for many years, to continue in some cases on a limited basis, with
minimal regulation. Until the final excavation rule was issued on
August 25, 1993, some active mining operations had not been regulated
under either Section 402 (EPA jurisdiction) or Section 404 (Corps
jurisdiction). Authorization under this NWP would be for a defined
area, would not include expansion, and would require ``Notification''
to the Corps. In addition, we are expressly seeking comments on
appropriate restrictions for this NWP including seasonal use (e.g.,
fish spawning), application of best management practices, and
restrictions or prohibitions on in-stream use. For example, should the
NWP be limited to activities effecting less than a certain number of
acres of waters of the United States or involving less than a certain
number of cubic yards of excavated material annually?
Paragraph b. of the proposed NWP would authorize recreational
mining with minimal effects either individually or cumulatively. The
potential environmental effects of mining operations of this nature
vary considerably throughout the country. Therefore, we are not
proposing any nationwide specific limitations. We believe limitations
are more appropriately established by the Corps Districts and Division
at the local level based on public comment. The Division Engineer is
responsible for establishing appropriate limits on recreational mining
operations within their areas of regulatory responsibility after public
notice and opportunity for public hearing. The Division Engineer will
add regional conditions, as necessary, to ensure that the effects will
be minimal. This portion of the NWP will not be effective until the
Division Engineer establishes regional limitations. On a case-by-case
basis, the District Engineer will, if necessary, add appropriate and
practicable special conditions to ensure that effects are minimal or
will exert discretionary authority to require an individual permit for
any activity whose effects exceed the minimal threshold. If you believe
that NWP conditions should be established, we welcome comments on
appropriate restrictions for this NWP including seasonal use (e.g.,
fish spawning), application of best management practices, and
limitations on in-stream use. Again, for example, should the NWP be
limited to activities effecting less than a certain number of acres of
waters of the United States or a certain number of linear feet of
stream channel?
While the Corps is primarily concerned with establishing NWP
thresholds to determine which activities could be authorized under this
NWP, the Corps is also considering establishing thresholds for
recreational mining, below which a Corps permit would not be required.
For recreational mining that does not destroy or degrade waters of the
United States, a Section 404 permit is not required pursuant to 33 CFR
323.2(d)(3) of the Excavation Rule. Recreational activities that have a
de minimis (inconsequential) effect do not require a permit. Several
Corps District Offices have solicited comments from the public to
establish a de minimis threshold. Other Corps districts will also be
issuing public notices to seek public comment to establish threshold
limits for minor activities that will not destroy or degrade aquatic
resources. Such inconsequential activities would not require a Corps
permit.
This NWP is not to be used for peat mining nor may it be used to
access sand and gravel through a peat deposit that is a water of the
United States. The discharge of onshore or onboard processed material
into waters of the U.S. is considered a Section 402 discharge and may
also require a permit under Section 402 of the Clean Water Act. For the
purpose of this NWP, activities can be considered ``recreational'' when
they are primarily for personal enjoyment and are not reasonably
associated with or an extension of a commercial enterprise. For
example, a commercial enterprise where mining interests are leased,
sold, transfered, etc., to individuals to
[[Page 30786]]
conduct ``recreational'' mining does not qualify for the NWP.
D. Maintenance of Existing Flood Control Projects. The Corps
proposes to authorize the excavation and removal of accumulated
sediment and associated vegetation for maintenance of existing flood
control facilities including debris basins, retention/detention basins
and channels not to exceed previously authorized depths and
configurations provided the dredged material is disposed of at an
upland site or a currently authorized disposal site in waters of the
United States, and proper siltation controls are used. Prior to the
excavation rule, this activity was not consistently regulated by the
Corps. Further, the Corps believes that, when considering a baseline
environmental condition or the approved flood control channel, such
excavation activities will not result in more than minimal effects. The
Corps is interested in receiving comments regarding whether time limits
should be placed on accepting the baseline condition of older projects
that have had little or no maintenance over the years.
Notification to the District Engineer is being proposed for
excavation undertaken in flood control facilities such as unlined
basins or channels that were previously authorized, or authorized by 33
CFR 330.3. We are interested in receiving comments regarding the
maximum cubic yardage to be allowed before notification is required.
This NWP is not intended to authorize the removal of sediment and
associated vegetation from natural water courses for such purposes as
redirecting or conveying normal water flows. Only channels within
stretches of natural rivers that have previously been authorized as
part of a flood control facility would be covered under this NWP. The
Corps will consider the use of discretionary authority when sensitive/
unique areas or significant social or ecological functions and values
may be adversely effected or where the maintenance may exceed present
flood control needs, such as in cases where successive flood control
projects on a watershed have affected flood control needs.
Discussion of Nationwide Permit Conditions
General Conditions
The following is a discussion of our reasons for proposing changes
to some existing NWP conditions. If an existing NWP condition is not
listed, we are not proposing to change it.
7. Wild and Scenic Rivers. We are proposing to modify this
condition to reduce the number of individual permits that are
needlessly processed due to the prohibition of authorizing a project
under NWP procedures in designated Wild and Scenic Rivers or those in
an official study status where activities are compatible with and do
not adversely affect such rivers. The Corps is proposing that these
activities could be allowed under NWP after coordination with the
appropriate Federal agency with direct management responsibility for
the river and after a determination is made by that agency that the
proposed activity will not adversely effect the study status or the
designated Wild and Scenic River status.
13. Notification. We are proposing to modify the notification
requirements. We will no longer require applicants to contact the State
Historic Preservation Officer (SHPO) and the U.S. Fish and Wildlife
Service/National Marine Fisheries Service before submitting the pre-
construction notification PCN). We continue to encourage applicants to
contact these agencies to obtain information; however, the Corps will
now send the PCN to these agencies. Many SHPOs have indicated that they
prefer not to deal directly with the applicants. Therefore, the Corps
will coordinate with the applicants and include the SHPO as an agency
receiving the PCN. This will insure that the SHPO is afforded an
opportunity to provide comments prior to the decision to authorize a
project under the NWP. The SHPO will also be held to the same time
restraints as the other agencies.
We are also proposing a change to the notification requirements on
six NWPs. Currently, NWPs 5, 7, 13, 14, 17, 18, 21, 26, 33, 34, 37, and
38 require coordination with the resource agencies during the
notification process. We recently surveyed the field to determine the
effectiveness of requiring agency coordination for these NWPs. We found
that for NWPs 14, 21, 26, 33, 37, and 38, coordination with the
resource agencies generally generated substantive comments and assisted
us in making sound environmental decisions. Therefore, we will maintain
the agency coordination requirement for these NWPs. Conversely, for
NWPs 5, 7, 13, 17, 18, and 34, we did not find the same level of
substantive comments. Many Corps districts indicated that they received
very few, if any, comments on work proposed by these NWPs. Therefore,
we are proposing to eliminate the requirement for agency coordination
for these NWPs except in those circumstances where a Regional
Administrator of EPA, a Regional Director of USFWS, or a Regional
Director of NMFS has formally requested general notification from the
District Engineer for the activities covered by any of these NWPs. In
such cases, the Corps will provide the requesting agency with
notification on the particular NWPs. However, where the agencies have a
record of not generally submitting substantive comments on activities
covered by any of these NWPs, the Corps district may discontinue to
provide notification to those regional agency offices.
We are also proposing to increase the notification time period from
30 days to 45 days for NWP 26 to allow the District Engineer sufficient
time to determine that the proposed project has minimal adverse
environmental effects for this NWP. As part of this change, the
resource agencies will now have 7 calendar days to conduct an initial
review of the proposed action and 14 additional calendar days to submit
substantive, site-specific comments.
In addition, we are proposing notification procedures and agency
coordination for NWP 29 and the new NWPs C and D. We have determined
that coordination with the resource agencies will be useful in ensuring
that projects proposed for authorization under these NWPs have minimal
adverse environmental effects.
Notification procedures for those NWPs are outlined under General
Condition #13 (Notification) in the proposed rule.
Section 404 Only Condition
4. Mitigation. We have proposed changing the wording of this
condition to clarify the phrase ``unless the District Engineer has
approved a compensatory mitigation plan for the specific regulated
activity.'' The wording would be changed to: ``unless the District
Engineer approves a compensatory mitigation plan that the District
Engineer determines is more beneficial to the environment than on-site
minimization or avoidance measures.''
Environmental Documentation
We have made a preliminary determination that this action does not
constitute a major Federal action significantly affecting the quality
of the human environment. Preliminary environmental documentation has
been prepared for each proposed NWP. This documentation includes a
preliminary environmental assessment and, where relevant, a preliminary
Section 404(b)(1) Guidelines compliance review. Copies of these
documents are available for inspection at the office of the Chief of
[[Page 30787]]
Engineers, at each Corps district office and on Corps Home Page at
http://wetland.usace.mil. Based on these documents the Corps has
provisionally determined that the proposed NWPs comply with the
requirements for issuance under general permit authority.
Authority
We are proposing to issue new NWPs, modify existing NWPs, and
reissue NWPs without change 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.).
Note 1: The terms ``he'' and its derivatives used in these
regulations are generic and should be considered as applying to both
male and female.
Dated: June 7, 1996.
Stanley G. Genega,
Major General, U.S. Army, Director of Civil Works.
Nationwide Permits and Conditions
A. Index of the Nationwide Permits and Conditions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Backfill and Bedding
13. Bank Stabilization
14. Road Crossing
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. 25 Cubic Yard Dredging
20. Oil Spill Cleanup
21. Surface Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharge
26. Headwaters and Isolated Waters Discharges
27. Wetland Restoration Activities
28. Modifications of Existing Marinas
29. Single-Family Housing
30. Reserved
31. Reserved
32. Completed Enforcement Actions
33. Temporary Construction and Access
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection
38. Cleanup of Hazardous and Toxic Waste
39. Reserved
40. Farm Buildings
Proposed New Nationwide Permits
A. Moist Soil Management for Wildlife
B. Food Security Act Minimal Effect Exemptions
C. Minor Mining Activities
D. Maintenance of Existing Flood Control Projects
Nationwide Permit Conditions
General Conditions
1. Navigation
2. Proper Maintenance
3. Erosion and Siltation Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality Certification
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
Section 404 Only Conditions
1. Water Supply Intakes
2. Shellfish Production
3. Suitable Material
4. Mitigation
5. Spawning Areas
6. Obstruction of High Flows
7. Adverse Impacts From Impoundments
8. Waterfowl Breeding Areas
9. Removal of Temporary Fills
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers which are approved by and installed in accordance
with the requirements of the U.S. Coast Guard. (See 33 CFR Part 66,
Chapter I, Subchapter C). (Section 10)
2. Structures in Artificial Canals. Structures constructed in
artificial canals within principally residential developments where the
connection of the canal to a navigable water of the United States has
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
3. Maintenance. The repair, rehabilitation, or replacement of any
previously authorized, currently serviceable, structure or fill, or of
any currently serviceable structure or fill authorized by 33 CFR 330.3,
provided that the structure or fill is not to be put to uses differing
from those uses specified or contemplated for it in the original permit
or the most recently authorized modification. Minor deviations in the
structure's configuration or filled area including those due to changes
in materials, construction techniques, or current construction codes or
safety standards which are necessary to make repair, rehabilitation, or
replacement are permitted, provided the environmental effects resulting
from such repair, rehabilitation, or replacement are minimal. Currently
serviceable means useable as is or with some maintenance, but not so
degraded as to essentially require reconstruction. This NWP authorizes
the repair, rehabilitation, or replacement of those structures
destroyed by storms, floods, fire or other discrete events, provided
the repair, rehabilitation, or replacement is commenced or under
contract to commence within two years of the date of their destruction
or damage. In cases of catastrophic events, such as hurricanes or
tornadoes, this two-year limit may be waived by the District Engineer,
provided the permittee can demonstrate funding, contract, or other
similar delays. Maintenance dredging and beach restoration are not
authorized by this NWP. (Sections 10 and 404)
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. Fish and wildlife harvesting devices and
activities such as pound nets, crab traps, crab dredging, eel pots,
lobster traps, duck blinds, clam and oyster digging; and small fish
attraction devices such as open water fish concentrators (sea kites,
etc.). This NWP authorizes shellfish seeding provided this activity
does not occur in wetlands or sites that support submerged aquatic
vegetation. This NWP does not authorize artificial reefs or
impoundments and semi- impoundments of waters of the United States for
the culture or holding of motile species such as lobster, or the use of
covered oyster trays or clam racks. (Sections 10 and 404)
5. Scientific Measurement Devices. Staff gages, tide gages, water
recording devices, water quality testing and improvement devices and
similar structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the
discharge is limited to 25 cubic yards and further for discharges of 10
to 25 cubic yards provided the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition. (Sections 10
and 404)
[[Page 30788]]
6. Survey Activities. Survey activities including core sampling,
seismic exploratory operations, plugging of seismic shot holes and
other exploratory-type bore holes, soil survey and sampling, and
historic resources surveys. Discharges and structures associated with
the recovery of historic resources are not authorized by this NWP.
Drilling and the discharge of excavated material from test wells for
oil and gas exploration is not authorized by this NWP; the plugging of
such wells is authorized. Fill placed for roads, pads and other similar
activities is not authorized by this NWP. The discharge of drilling
muds and cuttings may require a permit under Section 402 of the Clean
Water Act. (Sections 10 and 404)
7. Outfall Structures. Activities related to construction of
outfall structures and associated intake structures where the effluent
from the outfall is authorized, conditionally authorized, or
specifically exempted, or are otherwise in compliance with regulations
issued under the National Pollutant Discharge Elimination System
program (Section 402 of the Clean Water Act), provided that the
nationwide permittee notifies the District Engineer in accordance with
the ``Notification'' general condition. (Also see 33 CFR 330.1(e)).
Intake structures per se are not included--only those directly
associated with an outfall structure. (Sections 10 and 404)
8. Oil and Gas Structures. Structures for the exploration,
production, and transportation of oil, gas, and minerals on the outer
continental shelf within areas leased for such purposes by the
Department of the Interior, Minerals Management Service. Such
structures shall not be placed within the limits of any designated
shipping safety fairway or traffic separation scheme, except temporary
anchors that comply with the fairway regulations in 33 CFR 322.5(l).
(Where such limits have not been designated, or where changes are
anticipated, District Engineers will consider asserting discretionary
authority in accordance with 33 CFR 330.4(e) and will also review such
proposals to ensure they comply with the provisions of the fairway
regulations in 33 CFR 322.5(l). Any Corps review under this permit will
be limited to the effects on navigation and national security in
accordance with 33 CFR 322.5(f)). Such structures will not be placed in
established danger zones or restricted areas as designated in 33 CFR
Part 334: nor will such structures be permitted in EPA or Corps
designated dredged material disposal areas. (Section 10)
9. Structures in Fleeting and Anchorage Areas. Structures, buoys,
floats and other devices placed within anchorage or fleeting areas to
facilitate moorage of vessels where such areas have been established
for that purpose by the U.S. Coast Guard. (Section 10)
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.
(Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers,
small floating docks, and similar structures placed for recreational
use during specific events such as water skiing competitions and boat
races or seasonal use provided that such structures are removed within
30 days after use has been discontinued. At Corps of Engineers
reservoirs, the reservoir manager must approve each buoy or marker
individually. (Section 10)
12. Utility Line Discharges. Discharges of dredged or fill material
associated with excavation, backfill or bedding for utility lines,
including outfall and intake structures, provided there is no change in
preconstruction contours. A ``utility line'' is defined as any pipe or
pipeline for the transportation of any gaseous, liquid, liquefiable, or
slurry substance, for any purpose, and any cable, line, or wire for the
transmission for any purpose of electrical energy, telephone and
telegraph messages, and radio and television communication. The term
``utility line'' does not include activities which drain a water of the
United States, such as drainage tile; however, it does apply to pipes
conveying drainage from another area. This NWP does authorize
mechanized landclearing for the installation of subaqueous utilities
(i.e., below the surface of waters of the United States) provided the
cleared area is kept to the minimum necessary and preconstruction
contours are maintained. However, temporary access roads or foundations
associated with overhead transmission lines are not authorized by this
NWP. Material resulting from trench excavation may be temporarily
sidecast (up to three months) into waters of the United States provided
that the material is not placed in such a manner that it is dispersed
by currents or other forces. The DE may extend the period of temporary
side-casting not to exceed a total of 180 days, where appropriate. The
area of waters of the United States that is disturbed must be limited
to the minimum necessary to construct the utility line. Where the
utility line parallels a water of the United States, care should be
taken to minimize disturbance of the regulated waterbody. In wetlands,
the top 6'' to 12'' of the trench should generally be backfilled with
topsoil from the trench. Excess material must be removed to upland
areas immediately upon completion of construction. Any exposed slopes
and streambanks must be stabilized immediately upon completion of the
utility line. The utility line itself will require a Section 10 permit
if in navigable waters of the United States. (See 33 CFR Part 322).
(Section 404)
13. Bank Stabilization. Bank stabilization activities necessary for
erosion prevention provided:
a. No material is placed in excess of the minimum needed for
erosion protection;
b. The bank stabilization activity is less than 500 feet in length;
c. The activity will not exceed an average of one cubic yard per
running foot placed along the bank below the plane of the ordinary high
water mark or the high tide line;
d. No material is placed in any special aquatic site, including
wetlands;
e. No material is of the type or is placed in any location or in
any manner so as to impair surface water flow into or out of any
wetland area;
f. No material is placed in a manner that will be eroded by normal
or expected high flows (properly anchored trees and treetops may be
used in low energy areas); and,
g. The activity is part of a single and complete project. Bank
stabilization activities in excess of 500 feet in length or greater
than an average of one cubic yard per running foot may be authorized if
the permittee notifies the District Engineer in accordance with the
``Notification'' general condition and the District Engineer determines
the activity complies with the other terms and conditions of the NWP
and the adverse environmental effects are minimal both individually and
cumulatively. (Sections 10 and 404)
14. Road Crossing. Fills for roads crossing waters of the United
States (including wetlands and other special aquatic sites) provided:
a. The width of the fill is limited to the minimum necessary for
the actual crossing;
b. The fill placed in waters of the United States is limited to a
filled area of no more than \1/3\ acre. Furthermore, no more than a
total of 200 linear feet of the fill for the roadway can occur in
special aquatic sites, including wetlands;
c. The crossing is culverted, bridged or otherwise designed to
prevent the restriction of, and to withstand, expected high flows and
tidal flows, and to prevent the restriction of low flows and the
movement of aquatic organisms;
[[Page 30789]]
d. The crossing, including all attendant features, both temporary
and permanent, is part of a single and complete project for crossing of
a water of the United States; and,
e. For fills in special aquatic sites, including wetlands, the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition. The notification must also include
a delineation of affected special aquatic sites, including wetlands.
Some road fills may be eligible for an exemption from the need for a
Section 404 permit altogether (see 33 CFR 323.4). Also, where local
circumstances indicate the need, District Engineers will define the
term ``expected high flows'' for the purpose of establishing
applicability of this NWP. (Sections 10 and 404)
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or
fill material incidental to the construction of bridges across
navigable waters of the United States, including cofferdams, abutments,
foundation seals, piers, and temporary construction and access fills
provided such discharges have been authorized by the U.S. Coast Guard
as part of the bridge permit. Causeways and approach fills are not
included in this NWP and will require an individual or regional Section
404 permit. (Section 404)
16. Return Water From Upland Contained Disposal Areas. Return water
from an upland, contained dredged material disposal area. The dredging
itself may require a Section 404 permit, but will require a Section 10
permit if located in navigable waters of the United States. The return
water from a contained disposal area is administratively defined as a
discharge of dredged material by 33 CFR 323.2(d) even though the
disposal itself occurs on the upland and thus does not require a
Section 404 permit. This NWP satisfies the technical requirement for a
Section 404 permit for the return water where the quality of the return
water is controlled by the state through the Section 401 certification
procedures. (Section 404)
17. Hydropower Projects. Discharges of dredged or fill material
associated with (a) small hydropower projects at existing reservoirs
where the project, which includes the fill, are licensed by the Federal
Energy Regulatory Commission (FERC) under the Federal Power Act of
1920, as amended; and has a total generating capacity of not more than
5000 KW; and the permittee notifies the District Engineer in accordance
with the ``Notification'' general condition; or (b) hydropower projects
for which the FERC has granted an exemption from licensing pursuant to
Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and
2708) and Section 30 of the Federal Power Act, as amended; provided the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition. (Section 404)
18. Minor Discharges. Minor discharges of dredged or fill material
into all waters of the United States provided:
a. The quantity of discharged material and the volume of excavated
area does not exceed 25 cubic yards below the plane of the OHWM or the
High Tide Line;
b. The discharge, including any excavated area, will not cause the
loss of more than \1/10\ acre of a special aquatic site, including
wetlands. For the purposes of this NWP, the acreage limitation includes
the filled area and excavation area plus special aquatic sites that are
adversely affected by flooding and special aquatic sites that are
drained so that they would no longer be a water of the United States as
a result of the project;
c. If the discharge, including any excavated area, exceeds 10 cubic
yards or the discharge is in a special aquatic site, including
wetlands, the permittee notifies the District Engineer in accordance
with the ``Notification'' general condition. For discharges in special
aquatic sites, including wetlands, the notification must also include a
delineation of affected special aquatic sites, including wetlands.
(Also see 33 CFR 330.1(e)); and
d. The discharge, including all attendant features, both temporary
and permanent, is part of a single and complete project and is not
placed for the purpose of a stream diversion. (Sections 10 and 404)
19. Minor Dredging. Dredging of no more than 25 cubic yards below
the plane of the ordinary high water mark or the mean high water mark
from navigable waters of the United States (i.e., Section 10 actions)
as part of a single and complete project. This NWP does not authorize
the dredging or degradation through siltation of coral reefs, sites
that support submerged aquatic vegetation, anadromous fish spawning
areas, or wetlands or, the connection of canals or other artificial
waterways to navigable waters of the United States (see Section 33 CFR
322.5(g)). (Section 10 and 404)
20. Oil Spill Cleanup. Activities required for the containment and
cleanup of oil and hazardous substances which are subject to the
National Oil and Hazardous Substances Pollution Contingency Plan, (40
CFR Part 300), provided that the work is done in accordance with the
Spill Control and Countermeasure Plan required by 40 CFR Part 112.3 and
any existing State contingency plan and provided that the Regional
Response Team (if one exists in the area) concurs with the proposed
containment and cleanup action. (Sections 10 and 404)
21. Surface Coal Mining Activities. Activities associated with
surface coal mining activities provided they are authorized by the
Department of the Interior, Office of Surface Mining, or by states with
approved programs under Title V of the Surface Mining Control and
Reclamation Act of 1977 and provided the permittee notifies the
District Engineer in accordance with the ``Notification'' general
condition. For discharges in special aquatic sites, including wetlands,
the notification must also include a delineation of affected special
aquatic sites, including wetlands. (Also see 33 CFR 330.1(e)) (Sections
10 and 404.)
Note: For the purposes of this proposed rule, a discussion of a
proposed expansion for NWP 21 is provided in the Preamble.
22. Removal of Vessels. Temporary structures or minor discharges of
dredged or fill material required for the removal of wrecked,
abandoned, or disabled vessels, or the removal of man-made obstructions
to navigation. This NWP does not authorize the removal of vessels
listed or determined eligible for listing on the National Register of
Historic Places unless the District Engineer is notified and indicates
that there is compliance with the ``Historic Properties'' general
condition. This NWP does not authorize maintenance dredging, shoal
removal, or river bank snagging. Vessel disposal in waters of the
United States may need a permit from EPA (see 40 CFR 229.3). (Sections
10 and 404)
23. Approved Categorical Exclusions. Activities undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another Federal agency or department where that agency or
department has determined, pursuant to the Council on Environmental
Quality Regulation for Implementing the Procedural Provisions of the
National Environmental Policy Act (40 CFR Part 1500 et seq.), that the
activity, work, or discharge is categorically excluded from
environmental documentation because it is included within a category of
actions which neither individually nor cumulatively have a significant
effect on the human environment, and the Office of the Chief of
Engineers (ATTN: CECW-OR) has been furnished notice of
[[Page 30790]]
the agency's or department's application for the categorical exclusion
and concurs with that determination. Prior to approval for purposes of
this NWP of any agency's categorical exclusions, the Chief of Engineers
will solicit public comment. In addressing these comments, the Chief of
Engineers may require certain conditions for authorization of an
agency's categorical exclusions under this NWP. (Sections 10 and 404)
24. State Administered Section 404 Program. Any activity permitted
by a state administering its own Section 404 permit program pursuant to
33 U.S.C. 1344(g)-(l) is permitted pursuant to Section 10 of the Rivers
and Harbors Act of 1899. Those activities which do not involve a
Section 404 state permit are not included in this NWP, but certain
structures will be exempted by Section 154 of Public Law 94-587, 90
Stat. 2917 (33 U.S.C. 59l) (see 33 CFR 322.3(a)(2)). (Section 10)
25. Structural Discharges. Discharges of material such as concrete,
sand, rock, etc. into tightly sealed forms or cells where the material
will be used as a structural member for standard pile supported
structures, such as bridges, transmission line footings, and walkways
or for general navigation, such as mooring cells, including the
excavation of bottom material from within the form prior to the
discharge of concrete, sand, rock, etc. This NWP does not authorize
filled structural members that would support buildings, homes, parking
areas, storage areas and other such structures. Housepads or other
building pads are also not included in this NWP. The structure itself
may require a Section 10 permit if located in navigable waters of the
United States. (Section 404)
26. Headwaters and Isolated Waters Discharges. Discharges of
dredged or fill material into headwaters and isolated waters provided:
a. The discharge does not cause the loss of more than 10 (5,3)*
acres of waters of the United States;
b. The permittee notifies the District Engineer if the discharge
would cause the loss of waters of the United States greater than 1 (\1/
2\, \1/3\)* acre in accordance with the ``Notification'' general
condition. For discharges in special aquatic sites, including wetlands,
the notification must also include a delineation of affected special
aquatic sites, including wetlands. (Also see 33 CFR 330.1(e)); and
c. The discharge, including all attendant features, both temporary
and permanent, is part of a single and complete project.
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. The 10 (5,3)*-acre and 1 (\1/2\, \1/3\)*-acre
limits of NWP 26 are absolute, and cannot be increased by any
mitigation plan offered by the applicant or required by the District
Engineer.
*Note: For the purposes of this proposed rule, a discussion of
acreage threshold options being considered for NWP 26 is provided in
the Preamble.
Subdivisions: For any real estate subdivision created or subdivided
after October 5, 1984, a notification pursuant to subsection (b) of
this NWP is required for any discharge which would cause the aggregate
total loss of waters of the United States for the entire subdivision to
exceed one (1) (\1/2\, \1/3\)* acre. Any discharge in any real estate
subdivision which would cause the aggregate total loss of waters of the
United States in the subdivision to exceed ten (10) (5,3)* acres is not
authorized by this NWP; unless the DE exempts a particular subdivision
or parcel by making a written determination that: (1) the individual
and cumulative adverse environmental effects would be minimal and the
property owner had, after October 5, 1984, but prior to January 21,
1992, committed substantial resources in reliance on NWP 26 with regard
to a subdivision, in circumstances where it would be inequitable to
frustrate his investment-backed expectations, or (2) that the
individual and cumulative adverse environmental effects would be
minimal, high quality wetlands would not be adversely affected, and
there would be an overall benefit to the aquatic environment. Once the
exemption is established for a subdivision, subsequent lot development
by individual property owners may proceed using NWP 26. For purposes of
NWP 26, the term ``real estate subdivision'' shall be interpreted to
include circumstances where a landowner or developer divides a tract of
land into smaller parcels for the purpose of selling, conveying,
transferring, leasing, or developing said parcels. This would include
the entire area of a residential, commercial or other real estate
subdivision, including all parcels and parts thereof. (Section 404)
27. Wetland and Riparian Restoration and Creation Activities.
Activities in waters of the United States associated with the
restoration of altered and degraded non-tidal wetlands and creation of
wetlands on non-Federal public lands and private lands in accordance
with the terms and conditions of a binding wetland restoration or
creation agreement between the landowner and the U.S. Fish and Wildlife
Service or the Natural Resources Conservation Service; or activities
associated with the restoration of altered and degraded non-tidal
wetlands, riparian areas and creation of wetlands and riparian areas on
Federal land. Federal agencies may perform such activities on Federal
land after review and approval of an Operations and Maintenance Plan
for the project by the District Engineer. Such activities include, but
are not limited to: Installation and maintenance of small water control
structures, dikes, and berms; backfilling of existing drainage
structures; construction of small nesting islands; plowing or discing
for seed bed preparation; and other related activities. This NWP
applies to restoration projects that serve the purpose of restoring
``natural'' wetland hydrology, vegetation, and function to altered and
degraded non-tidal wetlands and ``natural'' functions of riparian
areas. For agreement restoration and creation projects only, this NWP
also authorizes any future discharge of dredged or fill material
associated with the reversion of the area to its prior condition and
use (i.e., prior to restoration under the agreement) within five years
after expiration of the limited term wetland restoration or creation
agreement, even if the discharge occurs after this NWP expires. The
prior condition will be documented in the original agreement, and the
determination of return to prior conditions will be made by the Federal
agency executing the agreement. 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. 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. (Sections 10 and 404)
Note: For the purposes of this proposed rule, a discussion of an
additional proposed expansion for NWP 27 is provided in the
Preamble.
28. Modifications of Existing Marinas. Reconfiguration of existing
docking facilities within an authorized marina area. No dredging,
additional slips or dock spaces, or expansion of any kind within waters
of the United States is authorized by this NWP. (Section 10)
29. Single-Family Housing. Discharges of dredged or fill material
into non-tidal waters of the United States, including
[[Page 30791]]
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:
a. The discharge does not cause the loss of more than \1/2\ 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 effects 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 \1/2\ 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; and,
g. This NWP may not be used in conjunction with NWP 14, NWP 18, or
NWP 26, for any parcel.
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. 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, 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 his or her 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 his or her spouse in any form
of ownership.'' (Sections 10 and 404)
30. Reserved.
31. Reserved.
32. Completed Enforcement Actions. Any structure, work or discharge
of dredged or fill material, remaining in place, or undertaken for
mitigation, restoration, or environmental benefit in compliance with
either:
(i) The terms of a final Corps non-judicial settlement agreement
fully resolving a violation of section 404 of the Clean Water Act (CWA)
and/or section 10 of the Rivers and Harbors Act of 1899 provided that:
(a) The unauthorized activity affected no more than 5 acres of
nontidal wetlands or 1 acre of tidal wetlands;
(b) The settlement agreement provides for environmental benefits,
to an equal or greater degree, than the environmental detriments caused
by the unauthorized activity; and
(c) The District Engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this nationwide
permit and the settlement agreement, including a specified completion
date; or
(ii) The terms of a final Federal court decision, consent decree,
or settlement agreement resulting from an enforcement action brought by
the United States under section 404 of the CWA and/or section 10 of the
Rivers and Harbors Act of 1899. For both (i) or (ii) above, compliance
is a condition of the NWP itself. Any authorization under this NWP is
automatically revoked if the permittee does not comply with the terms
of this NWP or the terms of the court decision, consent decree, or
judicial/non-judicial settlement agreement or fails to complete the
work by the specified completion date. This NWP does not apply to any
activities occurring after the date of the decision, decree, or
agreement that are not for the purpose of mitigation, restoration, or
environmental benefit. (Sections 10 and 404)
33. Temporary Construction, Access and Dewatering. Temporary
structures, work and discharges, including cofferdams, necessary for
construction activities or access fills or dewatering of construction
sites; provided the associated primary activity is authorized by the
Corps of Engineers or the U.S. Coast Guard, or for other construction
activities not subject to the Corps or U.S. Coast Guard regulations.
Appropriate measures must be taken to maintain near normal downstream
flows and to minimize flooding. Fill must be of materials and placed in
a manner that will not be eroded by expected high flows. The use of
dredged material may be allowed if determined by the District Engineer
that it will not cause more than minimal adverse effects on aquatic
resources. Temporary fill must be entirely removed to upland areas, or
dredged material returned to its original location, following
completion of the construction activity and the affected areas restored
to the pre-project conditions. Cofferdams cannot be used to dewater
wetlands or other aquatic areas so as to change their use. Structures
left in place after cofferdams are removed require a Section 10 permit
if located in navigable waters of the United States. (See 33 CFR Part
322). The permittee must notify the District Engineer in accordance
with the ``Notification'' general condition. The notification must also
include a restoration plan of reasonable measures to avoid and minimize
effects to aquatic resources. The District Engineer will add special
conditions, where necessary, to ensure that adverse environmental
effects are minimal. Such conditions may include: limiting the
temporary work to the minimum necessary; requiring seasonal
restrictions; modifying the restoration plan; and requiring alternative
construction methods (e.g., construction mats in wetlands where
practicable). (Sections 10 and 404)
34. Cranberry Production Activities. Discharges of dredged or fill
material for dikes, berms, pumps, water control structures or leveling
of cranberry beds associated with expansion, enhancement, or
modification activities at existing cranberry production operations
provided:
a. The cumulative total acreage of disturbance per cranberry
production operation, including but not limited to, filling, flooding,
ditching, or clearing, does not exceed 10 acres of waters of the United
States, including wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition; and,
c. The activity does not result in a net loss of wetland acreage.
This NWP does not authorize any discharge of dredged or fill
material related to other cranberry production activities such as
warehouses, processing facilities, or parking areas. For the purposes
of this NWP, the cumulative total of 10 acres will be measured over the
period that this NWP is valid. (Section 404)
35. Maintenance Dredging of Existing Basins. Excavation and removal
of accumulated sediment for maintenance of existing marina basins,
canals, and boat slips to previously authorized depths or controlling
depths for ingress/egress, whichever is less, provided the dredged
material is disposed of at an upland site and proper siltation controls
are used. (Section 10)
36. Boat Ramps. Activities required for the construction of boat
ramps provided:
a. The discharge into waters of the United States does not exceed
50 cubic
[[Page 30792]]
yards of concrete, rock, crushed stone or gravel into forms, or
placement of pre-cast concrete planks or slabs. (Unsuitable material
that causes unacceptable chemical pollution or is structurally unstable
is not authorized);
b. The boat ramp does not exceed 20 feet in width;
c. The base material is crushed stone, gravel or other suitable
material;
d. The excavation is limited to the area necessary for site
preparation and all excavated material is removed to the upland; and,
e. No material is placed in special aquatic sites, including
wetlands.
Dredging to provide access to the boat ramp may be authorized by
another NWP, regional general permit, or individual permit pursuant to
Section 10 if located in navigable waters of the United States.
(Sections 10 and 404)
37. Emergency Watershed Protection and Rehabilitation. Work done by
or funded by the Natural Resources Conservation Service qualifying as
an ``exigency'' situation (requiring immediate action) under its
Emergency Watershed Protection Program (7 CFR Part 624) and work done
or funded by the Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 509.13) provided the District Engineer is
notified in accordance with the ``Notification'' general condition.
(Also see 33 CFR 330.1(e)). (Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities
required to effect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority provided the permittee notifies the District Engineer in
accordance with the ``Notification'' general condition. For discharges
in special aquatic sites, including wetlands, the notification must
also include a delineation of affected special aquatic sites, including
wetlands. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste. Activities
undertaken by authority of CERCLA as approved or required by EPA, are
not required to obtain permits under Section 404 of the Clean Water Act
or Section 10 of the Rivers and Harbors Act. (Sections 10 and 404)
39. Reserved.
40. Farm Buildings. Discharges of dredged or fill material into
jurisdictional wetlands (but not including prairie potholes, playa
lakes, or vernal pools) that were in agricultural crop production prior
to December 23, 1985 (i.e., farmed wetlands) for foundations and
building pads for buildings. The discharge will be limited to the
minimum necessary but will in no case exceed 1 acre (see the
``Mitigation'' Section 404 only condition). (Section 404)
The following new NWPs are proposed. For the purposes of proposing
these NWPS, we have identified them by letters. If issued, they would
be placed at a reserved NWP number or given a new number.
A. Moist Soil Management for Wildlife. Discharges of dredged or
fill material associated with moist soil management for wildlife and
maintenance activities that are performed on non-tidal Federally-owned
or managed and State-owned or managed property, for the purpose of
continuing ongoing, site-specific, wildlife management activities where
soil manipulation is used to manage habitat and feeding areas for
wildlife. Such activities include, but are not limited to: the repair,
maintenance or replacement of existing water control structures; the
repair or maintenance of dikes; and plowing or discing to impede
succession, prepare seed beds, or establish fire breaks. Sufficient
vegetated buffers must be maintained adjacent to all open water bodies,
streams, etc., to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, etc. associated with the
management areas. This NWP does not authorize converting wetlands to
uplands or impoundments. (Section 404)
B. Food Security Act Minimal Effect Exemptions. (See preamble for
discussion).
C. Minor Mining Activities. Discharges of dredged material into all
waters of the United States for the purpose of mining minerals,
aggregates, precious metals and gems as follows:
a. Active sand and gravel mining operations in a defined area, not
including any expansions; (i) that were under active mining on August
25, 1993; or (ii) that were previously authorized by a Corps individual
permit or NWP verification. (Previous conditions imposed by the Corps
will remain in effect unless modified by the District Engineer.) The
permittee must notify the District Engineer in accordance with the
``Notification'' general condition. For proposed discharges that may
effect special aquatic sites (i.e., wetlands, mudflats, vegetated
shallows, coral reefs, riffle and pool complexes, sanctuaries and
refuges) the notification must also include a delineation of the
affected special aquatic sites. The notification must include evidence
of active mining of a defined area on August 25, 1993, or a copy of the
Corps permit or NWP verification. The District Engineer will determine
the limits of the defined area of active mining for the purposes of
this NWP. The District Engineer for specific cases or the Division
Engineer for geographic areas, will impose quantity, location, timing,
or other restrictions, as necessary, to ensure that the effects are
minimal.
b. Recreational mining in accordance with limitations, including
quantity, location, timing, or other restrictions established by the
Division Engineer to ensure that the effects are minimal. In some
cases, a pre-construction notification will be required by the District
Engineer to ensure that the effects are minimal. Limitations and
restrictions will be proposed by public notice with the opportunity for
public comment and to request a public hearing. For the purpose of this
NWP, activities can be considered ``recreational'' when they are
primarily for personal enjoyment and are not reasonably associated with
or an extension of a commercial enterprise.
Note: This NWP does not authorize the excavation of peat
deposits that are in waters of the United States to gain access to
the minerals, aggregates, precious metals and gems. The discharge of
material from the onshore (or onboard) processing of dredged
material may require a permit under Section 402 of the Clean Water
Act. (Sections 10 and 404)
D. Maintenance of Existing Flood Control Projects. Maintenance of
existing flood control facilities; including debris basins, retention/
detention basins, and channels that were previously authorized by the
Corps by individual permit, general permit, or by 33 CFR 330.3 or were
constructed by the Corps and transferred to a local sponsor for
operation and maintenance. The maintenance may not exceed previously
authorized depths and configurations. All dredged material is placed in
an upland site or a currently authorized disposal site in waters of the
United States, and proper siltation controls are used. The permittee
must notify the District Engineer in accordance with the
``Notification'' general condition.
This NWP is for the maintenance of existing flood control projects
only. This NWP does not authorize the removal of sediment and
associated vegetation from natural water courses. (Sections 10 and 404)
[[Page 30793]]
C. Nationwide Permit Conditions
General Conditions
The following general conditions must be followed in order for any
authorization by a NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse
effect on navigation.
2. Proper maintenance. Any structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Erosion and siltation controls. Appropriate erosion and
siltation controls must be used and maintained in effective operating
condition during construction, and all exposed soil and other fills
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 any case specific conditions added
by the Corps.
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).
8. Tribal rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
9. Water quality certification. In certain states, an individual
Section 401 water quality certification must be obtained or waived (see
33 CFR 330.4(c)).
10. Coastal zone management. In certain states, an individual state
coastal zone management consistency concurrence must be obtained or
waived (see Section 330.4(d)).
11. Endangered Species. 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.
Information on the location of threatened and endangered species and
their critical habitat can be obtained from the U.S. Fish and Wildlife
Service and National Marine Fisheries Service (see 33 CFR 330.4(f)).
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 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 (or 45 days for NWP 26) 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 number 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 14, 18, 21, 26, 29, 38, and ``C'', the PCN must also
include a delineation of affected special aquatic sites, including
wetlands (see paragraph 13(f));
(5) For NWP 33-Temporary Construction, Access, and Dewatering, the
PCN must also include a restoration plan of reasonable measures to
avoid and minimize effects to aquatic resources.
(6) For NWP 29-Single-Family Housing, the PCN must also include:
(i) Any past use of this NWP by the individual permittee and/or his
or her 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 his or
her 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.
[[Page 30794]]
(7) For NWP ``C'' Mining Activities under (a), the PCN must also
include:
(i) Evidence of active mining of a defined area on August 25, 1993
or a copy of the Corps permit or NWP verification; and
(ii) The project plan, including the defined area and volume of
excavated material.
(8) For NWP ``D''--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 maintenance plan, not to exceed five years. In
addition, the PCN must include:
(i) Sufficient evidence to identify the approved channel depths and
configurations and existing facilities. Minor deviations are authorized
provided 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.
(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)-(8) of General Condition 13. A letter
may also be used.
(d) District Engineer's Decision. In reviewing the pre-construction
notification for the proposed activity, the District Engineer will
determine whether the activity will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. The prospective permittee may, at his
option, 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 deter-mines
that the activity complies with the terms and conditions of the NWP and
that the adverse effects are minimal, the District Engineer will notify
the permittee and include any agreed upon special conditions and/or
mitigation.
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 informing him that the project can proceed under the
terms and conditions of the nationwide permit.
If the District Engineer determines that the adverse effects of the
proposed work are more than minimal, then he will notify the applicant
either: (1) that the project does not qualify for authorization under
the NWP and instruct the applicant on the procedures to seek
authorization under an individual permit; (2) that the project is
authorized under the NWP subject to the applicant's submitting a
mitigation proposal that would reduce the adverse effects to the
minimal level; or (3) that the project is authorized under the NWP with
specific modifications or conditions.
(e) Agency Coordination. The District Engineer will consider any
comments from Federal and State agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
(i) For NWP 14, 21, 26, 29, 33, 37, 38, C, and D. The District
Engineer will, upon receipt of a notification, provide immediately
(e.g., facsimile transmission, overnight mail or other expeditious
manner) a copy to the appropriate offices of the Fish and Wildlife
Service, State natural resource or water quality agency, EPA, State
Historic Preservation Officer (SHPO), and, if appropriate, the National
Marine Fisheries Service. With the exception of NWP 37, these agencies
will then have 5 calendar days (7 calendar days for NWP 26) from the
date the material is transmitted to telephone or fax the District
Engineer if they intend to provide substantive, site-specific comments.
If so contacted by an agency, the District Engineer will wait an
additional 10 calendar days (14 calendar days for NWP 26) before making
a decision on the notification. The District Engineer will fully
consider agency comments received within the specified time frame, but
will provide no response to the resource agency. The District Engineer
will indicate in the administrative record associated with each
notification that the resource agencies' concerns were considered.
Applicants are encouraged to provide the Corps multiple copies of
notifications to expedite agency notification.
(ii) Optional Agency Coordination. For NWPs 5, 7, 13, 17, 18, 26
(below 1 acre) and 34, where a Regional Administrator of EPA, a
Regional Director of USFWS, or a Regional Director of NMFS has formally
requested general notification from the District Engineer for the
activities covered by any of these NWPs, the Corps will provide the
requesting agency with notification on the particular NWPs. However,
where the agencies have a record of not generally submitting
substantive comments on activities covered by any of these NWPs, the
Corps district may discontinue to provide notification to those
regional agency offices. The District Engineer will coordinate with the
resources agencies to identify which activities involving a PCN that
the agencies will provide substantive comments to the Corps. The
District Engineer may also request comments from the agencies when the
District Engineer determines that such comments would assist in
reaching a decision if effects are more than minimal either
individually or cumulatively.
(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 (45 days for NWP 26) will not start until the wetland
delineation has been completed and submitted to the Corps, where
appropriate.
(g) Mitigation. Factors that the District Engineer will consider
when determining the acceptability of appropriate and practicable
mitigation include, but are not limited to:
(i) To be practicable, the mitigation must be available and capable
of being done considering costs, existing technology, and logistics in
light of overall project purposes;
(ii) To the extent appropriate, permittees should consider
mitigation banking and other forms of mitigation including
contributions to wetland trust funds, which 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 buffer zones to protect aquatic resource
values; and replacing the loss of aquatic resource values by creating,
restoring, and enhancing similar functions and values. In
[[Page 30795]]
addition, mitigation must address effects and cannot be 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. 5 acres of wetlands cannot be
created to change a 6-acre loss of wetlands to a 1 acre loss; however,
the 5 created acres can be used to reduce the effects of the 6-acre
loss).
Section 404 Only Conditions
In addition to the General Conditions, the following conditions
apply only to activities that involve the discharge of dredged or fill
material and must be followed in order for authorization by the NWPs to
be valid:
1. Water supply intakes. No discharge of dredged or fill material
may occur in the proximity of a public water supply intake except where
the discharge is for repair of the public water supply intake
structures or adjacent bank stabilization.
2. Shellfish production. No discharge of dredged or fill material
may occur in areas of concentrated shellfish production, unless the
discharge is directly related to a shellfish harvesting activity
authorized by NWP 4.
3. Suitable material. No discharge of dredged or fill material may
consist of unsuitable material (e.g., trash, debris, car bodies, etc.)
and material discharged must be free from toxic pollutants in toxic
amounts (see Section 307 of the Clean Water Act).
4. Mitigation. Discharges of dredged or fill material into waters
of the United States must be minimized or avoided to the maximum extent
practicable at the project site (i.e., on-site), unless the District
Engineer approves a compensation plan that the District Engineer
determines is more beneficial to the environment than on-site
minimization or avoidance measures.
5. Spawning areas. Discharges in spawning areas during spawning
seasons must be avoided to the maximum extent practicable.
6. Obstruction of high flows. To the maximum extent practicable,
discharges must not permanently restrict or impede the passage of
normal or expected high flows or cause the relocation of the water
(unless the primary purpose of the fill is to impound waters).
7. Adverse impacts from impoundments. If the discharge creates an
impoundment of water, adverse impacts on the aquatic system caused by
the accelerated passage of water and/or the restriction of its flow
shall be minimized to the maximum extent practicable.
8. Waterfowl breeding areas. Discharges into breeding areas for
migratory waterfowl must be avoided to the maximum extent practicable.
9. Removal of temporary fills. Any temporary fills must be removed
in their entirety and the affected areas returned to their preexisting
elevation.
[FR Doc. 96-15223 Filed 6-14-96; 8:45 am]
BILLING CODE 3710-92-P
