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[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Notices]
[Pages 9174-9207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3371]

[[Page 9173]]

Vol. 76

Wednesday,

No. 32

February 16, 2011

Part III

Department of Defense

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Department of the Army, Corps of Engineers

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Proposal To Reissue and Modify Nationwide Permits; Notice

Federal Register / Vol. 76 , No. 32 / Wednesday, February 16, 2011 / 
Notices

[[Page 9174]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

ZRIN 0710-ZA05

Proposal To Reissue and Modify Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting 
comments for the reissuance of the existing nationwide permits (NWPs), 
general conditions, and definitions, with some modifications. The Corps 
is also proposing to issue two new NWPs and two new general conditions. 
The Corps is requesting comment on all aspects of these proposed 
nationwide permits. More specifically, the Corps is requesting comments 
on options for NWP 21, which authorizes discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining activities, such as reissuing NWP 21 with modifications or not 
reissuing NWP 21. The Corps is also seeking comments on whether to 
reissue NWP 48 with modifications to authorize new commercial shellfish 
aquaculture activities or to issue a separate NWP to authorize only new 
commercial shellfish aquaculture activities. The reissuance process 
starts with today's publication of the proposed NWPs in the Federal 
Register for a 60-day comment period. The purpose of this Federal 
Register notice is to solicit comments on the proposed new and modified 
NWPs, as well as the NWP general conditions and definitions. Shortly 
after the publication of this Federal Register notice, each Corps 
district will publish a public notice to solicit comments on their 
proposed regional conditions for the new and modified NWPs. The comment 
period for these district public notices will be 45 days.

DATES: Submit comments on or before April 18, 2011.

ADDRESSES: You may submit comments, identified by docket number COE-
2010-0035 and/or ZRIN 0710-ZA05, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: NWP2012@usace.army.mil. Include the docket number, COE-
2010-0035, and/or the ZRIN number, 0710-ZA05, in the subject line of 
the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street, 
NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2010-0035 
and/or ZRIN 0710-ZA05. All comments received will be included in the 
public docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the commenter indicates that the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI, or otherwise protected, 
through regulations.gov or e-mail. The regulations.gov Web site is an 
anonymous access system, which means we will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an e-mail directly to the Corps without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, we 
recommend that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification, we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to regulations.gov. All documents in the docket 
are listed. Although listed in the index, some information is not 
publicly available, such as CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Mr. Dave Casey at 907-283-3519 or 202-
761-5903 or Mr. David Olson at 202-761-4922 or access the U.S. Army 
Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.

SUPPLEMENTARY INFORMATION: 

Background

    The current nationwide permits (NWPs), which were published in the 
March 12, 2007, issue of the Federal Register (72 FR 11092) expire on 
March 18, 2012. With this Federal Register notice, we are beginning the 
process for reissuing the NWPs so that the reissued NWPs will be in 
effect as the current NWPs expire.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States. Activities authorized by 
NWPs must be similar in nature, cause only minimal adverse 
environmental effects when performed separately, and cause only minimal 
cumulative adverse effect on the aquatic environment. Nationwide 
permits can also be issued to authorize activities pursuant to Section 
10 of the Rivers and Harbors Act of 1899. The NWP program is designed 
to provide timely authorizations for the regulated public while 
protecting the Nation's aquatic resources.
    Today's proposal to reissue 48 of the 49 existing NWPs with some 
modifications and to issue two new NWPs reflects the Corps commitment 
to its environmental protection mission and to aquatic resource 
protection. For the reasons provided below, we are proposing to let one 
NWP expire and not reissue it: NWP 47--Pipeline Safety Program 
Designated Time Sensitive Inspections and Repairs. We are proposing to 
revise the text of some of the NWPs, general conditions, and 
definitions so that they are clearer and can be more easily understood 
by the regulated public, government personnel, and interested parties, 
while retaining terms and conditions that protect the aquatic 
environment. Making the text of the NWPs clearer and easier to 
understand will also facilitate compliance with these permits, which 
will benefit the aquatic environment. The NWP program allows the Corps 
to authorize activities with minimal adverse environmental impacts in a 
timely manner and protect the aquatic environment. The NWP program also 
allows the Corps to focus its limited resources on more extensive 
evaluation of projects that have the potential for causing 
environmentally damaging adverse effects.
    Through the NWPs, impacts to the aquatic environment may also 
receive additional protection through regional conditions, case-
specific special

[[Page 9175]]

conditions, and case-specific discretionary authority to require 
individual permits. Nationwide permits and other general permits help 
protect the aquatic environment because permit applicants often reduce 
project impacts to meet the restrictive requirements of general permits 
and receive authorization more quickly than they would through the 
individual permit process.
    Thirty of the NWPs proposed for reissuance require pre-construction 
notification (PCN) for certain activities. Twenty of those NWPs require 
PCNs for all activities. Each of the two proposed new NWPs require 
PCNs. Pre-construction notification requirements give the Corps the 
opportunity to evaluate certain proposed NWP activities on a case-by-
case basis to ensure that they will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. This 
case-by-case review often results in adding case-specific conditions to 
the NWP authorization to ensure that impacts to the aquatic environment 
are minimal. Review of a PCN may also result in the Corps asserting 
discretionary authority to require an individual permit if the district 
engineer determines, based on the information provided in the PCN, that 
adverse impacts will be more than minimal, either individually or 
cumulatively, or there are sufficient concerns for any of the Corps 
public interest review factors.
    Regional conditions may be imposed by division engineers to take 
into account regional differences in aquatic resource functions and 
services across the country and to restrict or prohibit the use of NWPs 
to protect those resources. Through regional conditions, a division 
engineer can modify an NWP to require submission of PCNs for certain 
activities. Regional conditions may also restrict or prohibit the use 
of an NWP in certain waters or geographic areas, if the use of that NWP 
in those waters or areas might result in more than minimal individual 
or cumulative adverse effects to the aquatic environment.
    District engineers may impose special conditions on NWP 
authorizations to ensure that the NWP authorizes only activities that 
result in minimal individual and cumulative effects on the aquatic 
environment and other public interest review factors. In addition, 
special conditions will often include compensatory mitigation 
requirements to reduce the project impacts to the minimal level. 
Compensatory mitigation may include the restoration, establishment, 
enhancement, and/or preservation of aquatic habitats, as well as the 
establishment and maintenance of riparian areas next to streams and 
other open waters. Compensatory mitigation can be provided through 
permittee-responsible mitigation, mitigation banks, or in-lieu fee 
programs.

Process for Reissuing the NWPs

    The NWPs reissued on March 12, 2007, went into effect on March 19, 
2007, and expire on March 18, 2012. The reissuance process starts with 
today's publication of the proposed NWPs in the Federal Register for a 
60-day comment period. Requests for a public hearing must be submitted 
in writing to the address in the ADDRESSES section of this notice. 
These requests must state the reason(s) for holding a public hearing. 
If we determine that a public hearing or hearings would assist in 
making a decision on the issuance of the proposed new NWPs, reissuance 
of existing NWPs, or the NWP general conditions or definitions, a 30-
day advance notice will be published in the Federal Register to advise 
interested parties of the date(s) and location(s) for the public 
hearing(s). Any announcement of public hearings would also be posted as 
a supporting material in the docket at http://www.regulations.gov as 
well as the Corps regulatory home page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.
    Shortly after the publication of this Federal Register notice, 
Corps district offices will issue public notices to solicit comments on 
proposed regional conditions. In their district public notices, 
district engineers may also propose to suspend or revoke some or all of 
these NWPs if they have issued, or are proposing to issue, regional 
general permits, programmatic general permits, or section 404 letters 
of permission for use in lieu of NWPs. The comment period for these 
district public notices will be 45 days.
    After the comment period has ended, we will review the comments 
received in response to this Federal Register notice. Then we will 
draft the final NWPs, and those final draft NWPs will be subjected to 
another review by interested Federal agencies. The final issued NWPs 
will be published in the Federal Register by December 2011. The final 
NWPs will go into effect 90 days after their publication. In the past, 
the schedule normally allowed state governments, tribal governments, 
and EPA a 60-day period for Clean Water Act Section 401 water quality 
certifications (WQCs) as well as Coastal Zone Management Act (CZMA) 
consistency determinations by states. The change to 90 days is made in 
order to meet the requirements of the Department of Commerce that 
require Federal agencies to provide at least 90 days for state 
governments to make their CZMA consistency determinations (see 15 CFR 
930.36(b)). Within this 90-day period, division engineers will also 
develop regional conditions and supplemental decision documents. 
Supplemental decision documents address the environmental 
considerations related to the use of NWPs in a Corps district. The 
supplemental decision documents will certify that the NWPs, with any 
regional conditions or geographic suspensions or revocations, will only 
authorize activities within that Corps district that result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
The regional conditioning and WQC/CZMA processes are discussed below.

Compliance With Section 404(e) of the Clean Water Act

    The proposed NWPs are issued in accordance with Section 404(e) of 
the Clean Water Act. These NWPs authorize categories of activities that 
are similar in nature. The ``similar in nature'' requirement does not 
mean that activities authorized by an NWP must be identical to each 
other. We believe that the ``categories of activities that are similar 
in nature'' requirement of section 404(e) is to be interpreted broadly, 
for practical implementation of this general permit program. Nationwide 
permits, as well as other general permits, are intended to reduce 
administrative burdens on the Corps and the regulated public, by 
efficiently authorizing activities that have minimal adverse 
environmental effects.
    As for the minimal adverse effects provision of section 404(e), the 
various terms and conditions of these NWPs, including the provisions in 
the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(e) that allow 
district engineers to exercise discretionary authority, ensure 
compliance with this requirement. A decision document will be prepared 
for each NWP to address the requirements of the National Environmental 
Policy Act and generally discuss the anticipated impacts the NWP will 
have on the Corps public interest review factors. For those NWPs that 
may authorize discharges of dredged or fill material into waters of the 
United States, a 404(b)(1) Guidelines analysis will be provided in the 
decision document. The 404(b)(1) Guidelines analysis will be conducted 
in accordance with 40 CFR 230.7. The draft decision documents for the

[[Page 9176]]

proposed NWPs are available on the internet at: http://www.regulations.gov (docket ID number COE-2010-0035). We are soliciting 
comments on these draft decision documents, and any comments received 
will be considered when preparing the final decision documents for the 
NWPs.

National Environmental Policy Act Compliance

    We have prepared a draft decision document for each proposed NWP. 
Each decision document contains an environmental assessment (EA). If 
the proposed NWP authorizes discharges of dredged or fill material into 
waters of the United States, the decision document will also include a 
404(b)(1) Guidelines analysis conducted in accordance with 40 CFR 
230.7. These decision documents will consider the environmental effects 
of each NWP from a national perspective. Division engineers will issue 
supplemental decision documents to evaluate regional effects on the 
aquatic environment and other public interest review factors. Those 
supplemental decision documents will discuss regional conditions 
imposed by division engineers to protect the aquatic environment and 
ensure that any adverse effects resulting from NWP activities will be 
no more than minimal.
    The assessment of cumulative effects occurs at two levels: national 
and regional (district). However, modifications at the district level 
are made by the appropriate division engineer. There are eight Corps 
division offices in the United States, with 38 district offices. A 
division office may oversee as many as seven districts (Lakes and 
Rivers Division) or as few as two district offices (Pacific Ocean 
Division).
    At the national level, the decision documents issued by Corps 
Headquarters include cumulative effects assessments required by NEPA 
and, if the NWP authorizes discharges of dredged or fill material into 
waters of the United States, the 404(b)(1) Guidelines. The 404(b)(1) 
Guidelines at 40 CFR 230.7(b) require an evaluation of the potential 
individual and cumulative impacts of the category of activities 
authorized under the NWP.
    The supplemental decision documents issued by division engineers 
include cumulative effects assessments at the regional (district) 
level, for each district within the division. For those NWPs that 
authorize section 404 activities, the supplemental decision documents 
will also discuss local concerns relating to the Section 404(b)(1) 
Guidelines, if the national decision documents do not adequately 
address those issues. If the NWP is not suspended or revoked in a 
district, the supplemental decision document includes a certification 
that the use of the NWP in that district, with any applicable regional 
conditions (i.e., applicable in a specific district), will result in 
minimal cumulative adverse environmental effects. The supplemental 
decision documents are prepared by Corps districts, but must be 
approved and formally issued by the appropriate division engineer, 
since the NWP regulations at 33 CFR 330.5(c) state that the division 
engineer has the authority to modify, suspend, or revoke NWP 
authorizations for any specific geographic area within his division. 
Regional conditions are considered NWP modifications. Therefore, when 
the process is completed, each district will have approved supplemental 
decision documents for each NWP, and those supplemental decision 
documents will assess cumulative effects within that district.
    District engineers may also recommend that the division engineer 
exercise discretionary authority to modify, suspend, or revoke case-
specific NWP authorizations within a district to ensure that only 
minimal cumulative adverse effects on the aquatic environment result 
from activities authorized by that NWP. Evaluations by a district 
engineer may result in the division engineer modifying, suspending, or 
revoking NWP authorizations in a particular geographic region or 
watershed at a later time, if the use of an NWP in a particular area 
will result in more than minimal cumulative or individual adverse 
effects on the aquatic environment. Special conditions added to NWP 
authorizations on a case-by-case basis by district engineers, such as 
compensatory mitigation requirements, help ensure that the NWPs 
authorize only activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment.

Acreage Limits and Pre-Construction Notification Thresholds

    We are proposing to retain most of the current acreage limits for 
the NWPs and propose to modify some of the NWPs acreage limits. We are 
also proposing to modify the language concerning the use of waivers in 
NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be 
granted only after the district engineer makes a written determination 
concluding that the discharge will result in minimal adverse effects. 
The modified waiver language will also be applied to NWPs 21, 44, and 
50, as well as proposed new NWPs A and B. We are proposing to replace 
the 25 cubic yard limit for temporary pads in NWP 6 with a \1/10\-acre 
limit for temporary pads. For NWP 50 we are proposing a \1/2\-acre 
limit on non-tidal waters of the United States including the loss of no 
more than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. In NWPs 40 and 44 we are 
proposing to increase protection of streams by adding a 300 linear foot 
limit for losses of stream bed, which can be waived for intermittent 
and ephemeral stream beds if the district engineer makes a written 
determination concluding that the discharge will result in minimal 
adverse effects.
    Proposed NWP A, Land-Based Renewable Energy Generation Facilities, 
and proposed NWP B, Water-Based Renewable Energy Generation Pilot 
Projects, have a \1/2\-acre limit for losses of non-tidal waters of the 
United States, including the loss of no more than 300 linear feet of 
stream bed, unless for intermittent and ephemeral stream beds the 
district engineer waives the 300 linear foot limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects. Both of these proposed NWPs require PCNs.
    In NWP 48, we are proposing to add another PCN threshold for 
proposed expansions of the project area for the production of 
shellfish.

Compliance With the Endangered Species Act

    In its April 6, 2005, decision in National Wildlife Federation et 
al. v. Les Brownlee (No. 03-1392), the U.S. District Court for the 
District of Columbia determined that the Corps is obligated to consult 
with the U.S. Fish and Wildlife Service (FWS) on the effects of the 
NWPs. In response to that decision, on March 13, 2007, the Corps 
initiated Endangered Species Act Section 7(a)(2) programmatic 
consultation with FWS and the National Marine Fisheries Service (NMFS) 
for the current NWPs. NMFS provided a draft biological opinion and the 
Corps provided comments on that draft biological opinion, as well as 
additional information regarding the NWPs to NMFS as well as FWS. The 
Corps also granted an extension of time to the NMFS to provide the next 
draft of the biological opinion, and to the FWS to provide its draft 
biological opinion. Since the 2007 programmatic consultation was not 
completed, the

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Corps has reinitiated programmatic Section 7 consultation for the NWP 
program. Corps districts will consult, as necessary, with the FWS and 
the NMFS for the species that occur in their districts and may develop 
regional conditions to protect listed species and designated critical 
habitat.

Essential Fish Habitat

    The NWP Program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act will be achieved through EFH consultations between 
Corps districts and NMFS regional offices. Corps districts will request 
EFH consultations with the NMFS regional office in cases where 
activities authorized by NWP may adversely affect EFH. The purpose of 
these regional consultations is to determine if implementation of the 
proposed NWPs and regional conditions within a particular region may 
have an adverse effect on EFH. These consultations will be conducted 
according to the EFH consultation regulations at 50 CFR 600.920.

Regional Conditioning of Nationwide Permits

    Under Section 404(e), NWPs can only be issued for those activities 
that result in minimal individual and cumulative adverse effects on the 
aquatic environment. An important mechanism for ensuring compliance 
with this requirement is an effective regional conditioning process. 
Coordination with Federal and state agencies and Indian Tribes, and the 
solicitation of public comments, assist division and district engineers 
in identifying and developing appropriate regional conditions for the 
NWPs. Effective regional conditions protect local aquatic ecosystems 
and helps ensure that the NWPs authorize only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment, and are in the public interest.
    There are two types of regional conditions: (1) Corps regional 
conditions and (2) water quality certification/Coastal Zone Management 
Act consistency determination regional conditions.
    Corps regional conditions may be added to NWPs by division 
engineers after a public notice and comment process and coordination 
with other Federal, state, and local agencies.
    Examples of Corps regional conditions include:
     Restricting the types of waters of the United States where 
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or 
prohibiting the use of some or all of the NWPs in those types of waters 
or in specific watersheds.
     Restricting or prohibiting the use of NWPs in an area 
covered by a Special Area Management Plan, or an Advanced 
Identification study with associated regional general permits.
     Adding pre-construction notification (PCN) requirements to 
NWPs to require notification for all work in certain watersheds or 
certain types of waters of the United States, or lowering the PCN 
threshold.
     Reducing NWP acreage limits in certain types of waters of 
the United States, or specific waterbodies.
     Revoking certain NWPs on a geographic or watershed basis.
     Restricting activities authorized by NWPs to certain times 
of the year in a particular waterbody, to minimize the adverse effects 
of those activities on fish or shellfish spawning, wildlife nesting, or 
other ecologically cyclical events.
     Conditions necessary to ensure compliance with the 
Endangered Species Act and essential fish habitat provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act.
    Corps regional conditions approved by division engineers cannot 
remove or reduce any of the terms and conditions of the NWPs, including 
general conditions and PCN requirements. In other words, Corps regional 
conditions can only be more restrictive than the original NWP terms and 
conditions.
    Regional conditions may also be added to the NWPs as a result of 
water quality certifications (WQCs) issued by states, Indian Tribes, or 
the U.S. EPA, as well as state Coastal Zone Management Act (CZMA) 
consistency determinations.
    At approximately the same time as the publication of this Federal 
Register notice, each Corps district will issue an initial public 
notice. Those initial public notices will include Corps regional 
conditions proposed by our district offices, and will also request 
comments or suggestions for additional Corps regional conditions. The 
initial public notice may also include, for informational purposes 
only, any proposed state or tribal WQC regional conditions or state 
CZMA regional conditions. However, public comment on the state or 
tribal WQC regional conditions or state CZMA regional conditions is 
handled through a separate state or tribal administrative procedures 
process. The public should not address such comments to the Corps.
    In response to the district's initial public notice, interested 
parties may suggest additional Corps regional conditions, or suggest 
suspension or revocation of NWPs in certain geographic areas, such as 
specific watersheds or waterbodies. Such comments should include data 
to support the need for any suggested modifications, suspensions, or 
revocations of NWPs.
    After the NWPs are issued or reissued, the division engineer will 
issue supplemental decision documents for each NWP. These supplemental 
decision documents will address the NWP regional conditions. Each 
supplemental decision document will also include a statement by the 
division engineer, which will certify that the NWP, with approved 
regional conditions, will authorize only activities with minimal 
individual and cumulative adverse effects on the aquatic environment.
    After the division engineer approves the Corps regional conditions, 
each Corps district will issue a final public notice for the NWPs. The 
final public notice will announce both the final Corps regional 
conditions and any final WQC/CZMA regional conditions. The final public 
notices will also announce the final status of water quality 
certifications and CZMA consistency determinations for the NWPs. Corps 
districts may adopt additional regional conditions in future public 
notices (following public notice and comment procedures), if they 
identify a need for such conditions.
    Information on regional conditions and revocation can be obtained 
from the appropriate district engineer, as indicated below. 
Furthermore, this and additional information can be obtained on the 
internet at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx. If 
you select a state on this Web site you will be directed to the Web 
site of the appropriate Corps district office.
    In cases where a Corps district has issued a regional general 
permit that authorizes similar activities as one or more NWPs, the 
district will clarify the use of the regional general permit versus the 
NWP(s) during the regional conditioning process. For example, the 
division engineer may revoke the applicable NWP(s) so that only the 
regional general permit may be used to authorize those activities.

Water Quality Certification/Coastal Zone Management Act Consistency 
Determination for Nationwide Permits

    State or Tribal water quality certification, or waiver thereof, is

[[Page 9178]]

required by Section 401 of the Clean Water Act, for activities 
authorized by NWPs which result in a discharge into waters of the 
United States. In addition, any state with a federally-approved CZMA 
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 
CZMA plan to the maximum extent practicable. Water quality 
certifications and/or CZMA consistency determinations may be issued 
without conditions, issued with conditions, or denied for specific 
NWPs.
    We believe that, in general, the activities authorized by the NWPs 
will not violate State or Tribal water quality standards and will be 
consistent with state CZMA plans. The NWPs are conditioned to ensure 
that adverse environmental effects will be minimal and address the 
types of activities that would be routinely authorized if evaluated 
under the individual permit process. We recognize that in some states 
or Tribal lands there will be a need to add regional conditions, or 
individual state or Tribal review for some activities, to ensure 
compliance with water quality standards and/or consistency with the 
state's CZMA plans. As a practical matter, we intend to work with 
states and Tribes to ensure that NWPs include the necessary conditions 
so that they can issue water quality certifications or CZMA consistency 
concurrences. Therefore, each Corps district will initiate discussions 
with their respective state(s) and Tribe(s), as appropriate, to discuss 
issues of concern and identify regional modification and other 
approaches to address the scope of waters, activities, discharges, and 
PCNs, as appropriate, to resolve these issues. Note that in some states 
the Corps has issued state programmatic general permits (SPGPs), and 
within those states some or all of the NWPs may be suspended or revoked 
by division engineers. Concurrent with today's proposal, district 
engineers may be proposing modification or revocation of the NWPs in 
states where SPGPs will be used in place of some or all of the NWPs.

Section 401 of the Clean Water Act

    This Federal Register notice serves as the Corps application to the 
Tribes, States, or EPA, where appropriate, for water quality 
certification of the activities authorized by these NWPs. The Tribes, 
States, and EPA, where appropriate, are requested to issue, deny, or 
waive water quality certification pursuant to 33 CFR 330.4(c) for these 
NWPs.
    If a state denies a water quality certification for an NWP within 
that state, then the affected activities are not authorized by NWP 
within that state, until a project proponent obtains an individual 
water quality certification, or the water quality certification is 
waived. However, when applicants request approval of such activities, 
and the Corps determines that those activities meet the terms and 
conditions of the NWP, the Corps will issue provisional NWP 
verification letters. The provisional verification letter will contain 
general and regional conditions as well as any project specific 
conditions the Corps determines are necessary for NWP authorization. 
The Corps will notify the applicant that they must obtain a project 
specific water quality certification, or waiver thereof, before they 
are authorized to start work in waters of the United States. That is, 
NWP authorization will be contingent upon obtaining the necessary water 
quality certification or waiver thereof from the State, Tribe, or EPA 
where appropriate. Anyone wanting to perform such activities where pre-
construction notification to the Corps is not required has an 
affirmative responsibility to first obtain a project-specific water 
quality certification or waiver thereof from the Tribe, State, or EPA 
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, to the maximum extent 
practicable, consistent with state CZMA programs. This determination is 
contingent upon the addition of state CZMA conditions and/or regional 
conditions, or the issuance by the state of an individual consistency 
concurrence, where necessary. States are requested to agree or disagree 
with the consistency determination following 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, 
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 do not require a Corps CZMA consistency 
determination and thus are not contingent on a State's agreement with 
the Corps consistency determinations.
    If a state disagrees with the Corps consistency determination for 
an NWP, then the affected activities are not authorized by NWP within 
that state, until a project proponent obtains an individual consistency 
determination, or sufficient time (six months) passes after requesting 
a consistency determination for the applicant to make a presumption of 
consistency, as provided for in 33 CFR 330.4(d)(6). However, when 
applicants request approval of such activities, and the Corps 
determines that those activities meet the terms and conditions of the 
NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary for NWP authorization. The Corps will notify 
the applicant that they must obtain a project specific CZMA consistency 
determination before they are authorized to start work in waters of the 
United States. That is, NWP authorization will be contingent upon 
obtaining the necessary CZMA consistency concurrence from the State. 
Anyone wanting to perform such activities where pre-construction 
notification to the Corps is not required has an affirmative 
responsibility to 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).

Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer that an activity 
complies with the terms and conditions of an NWP, prior to commencing 
the proposed work. The requirement to submit a PCN is identified in the 
NWP text. Pre-construction notification requirements may be added to 
NWPs by division engineers through regional conditions. In cases where 
pre-construction notification is not required, a project proponent may 
submit a PCN voluntarily, if he or she wants assurance that the 
activity is authorized by an NWP. A NWP verification is a response to a 
PCN that confirms that a particular activity is authorized by an NWP.
    In response to an NWP verification request or PCN, the district 
engineer reviews the information submitted by the prospective 
permittee. If the district engineer determines that the activity 
complies with the terms and conditions of the NWP, he or she will 
notify the permittee. Special conditions, such as compensatory 
mitigation requirements, may be added to the NWP authorization to 
ensure that the activity results in

[[Page 9179]]

minimal individual and cumulative adverse effects on the aquatic 
environment and other public interest factors. The special conditions 
are incorporated into the NWP verification, along with the NWP text and 
the NWP general conditions.
    If the district engineer reviews the NWP verification request and 
determines that the proposed activity does not comply with the terms 
and conditions of an NWP, he or she will notify the project proponent 
and provide instructions for applying for authorization under a 
regional general permit or an individual permit. District engineers 
will respond to NWP verification requests, submitted voluntarily or 
when required, within 45 days of receiving a complete PCN. Except for 
NWPs 21, 49, and 50, and for proposed NWP activities that require 
Endangered Species Act Section 7 consultation and/or National Historic 
Preservation Act Section 106 consultation, if the project sponsor has 
not received a reply from the Corps within 45 days, he or she may 
assume that the project is authorized, consistent with the information 
in the PCN. For NWPs 21 (Surface Coal Mining Activities), 49 (Coal 
Remining Activities), and 50 (Underground Coal Mining Activities), and 
for proposed NWP activities that require Endangered Species Act Section 
7 consultation and/or National Historic Preservation Act Section 106 
consultation, the project sponsor may not begin work before receiving a 
written NWP verification.

Contact Information for Corps District Engineers

Alabama

    Mobile District Engineer, ATTN: CESAM-RD, 109 St. Joseph Street, 
Mobile, AL 36602-3630.

Alaska

    Alaska District Engineer, ATTN: CEPOA-RD, P.O. Box 6898, Elmendorf 
AFB, AK 99506-6898.

Arizona

    Los Angeles District Engineer, ATTN: CESPL-RG-R, P.O. Box 532711, 
Los Angeles, CA 90053-2325.

Arkansas

    Little Rock District Engineer, ATTN: CESWL-RD, P.O. Box 867, Little 
Rock, AR 72203-0867.

California

    Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, 
Sacramento, CA 95814-2922.

Colorado

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

Connecticut

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Delaware

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.

Florida

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Georgia

    Savannah District Engineer, ATTN: CESAS-RD, 100 West Oglethorpe 
Avenue, Savannah, GA 31401-3640.

Hawaii

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Idaho

    Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third 
Avenue, Walla Walla, WA 99362-1876.

Illinois

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Indiana

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Iowa

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Kansas

    Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Kentucky

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Louisiana

    New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, 
New Orleans, LA 70160-0267.

Maine

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Maryland

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Massachusetts

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Michigan

    Detroit District Engineer, ATTN: CELRE-RG, 477 Michigan Avenue, 
Detroit, MI 48226-2550.

Minnesota

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street 
East, Suite 700, St. Paul, MN 55101-1678.

Mississippi

    Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street, 
Vicksburg, MS 39183-3435.

Missouri

    Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Montana

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Nebraska

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Nevada

    Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922.

New Hampshire

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

New Jersey

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.

New Mexico

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

[[Page 9180]]

New York

    New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New 
York, NY 10278-0090.

North Carolina

    Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890, 
Wilmington, NC 28402-1890.

North Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Ohio

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Oklahoma

    Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave, 
Tulsa, OK 74128-4609.

Oregon

    Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946, 
Portland, OR 97208-2946.

Pennsylvania

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Rhode Island

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

South Carolina

    Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919.

South Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Tennessee

    Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road, 
Nashville, TN 37214.

Texas

    Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229, 
Galveston, TX 77553-1229.

Utah

    Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, CA 
95814-2922.

Vermont

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Virginia

    Norfolk District Engineer, ATTN: CENAO-REG, 803 Front Street, 
Norfolk, VA 23510-1096.

Washington

    Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-3755.

West Virginia

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Wisconsin

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street 
East, Suite 700, St. Paul, MN 55101-1678.

Wyoming

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

District of Columbia

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Pacific Territories (American Samoa, Guam, & Commonwealth of the 
Northern Mariana Islands)

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Puerto Rico and Virgin Islands

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Request for Comment

    We are proposing to reissue 48 nationwide permits, as well as the 
general conditions and definitions. We are also proposing to issue two 
new NWPs, two new general conditions, and one new definition. 
Substantive changes to the nationwide permits, general conditions, and 
definitions are discussed below, but we are soliciting comments on all 
the nationwide permits, general conditions, and definitions. Minor 
grammatical changes, the removal of redundant language, and other small 
changes are not discussed in the preamble below. Therefore, commenters 
should carefully read each proposed NWP, general condition, and 
definition in this notice.

NWP Not Proposed for Reauthorization

    NWP 47. Pipeline Safety Program Designated Time Sensitive 
Inspections and Repairs. This NWP was first issued in 2007 in reliance 
on the Pipeline and Hazardous Materials Safety Administration's (PHMSA) 
implementation of a Web-based system called the Pipeline Repair and 
Environmental Guidance System (PREGS). The terms of NWP 47 required 
permittees to report their use of this NWP through PREGS. PHMSA ceased 
their development of PREGS, which the Corps planned to use in order to 
monitor projects authorized by NWP 47. In the place of NWP 47, projects 
subject to PHMSA's Pipeline Safety Program may be eligible for 
authorization under NWP 3, Maintenance, or NWP 12, Utility Line 
Activities, provided those projects meet the terms and conditions of 
the appropriate NWP(s).

Discussion of Proposed Modifications to Existing Nationwide Permits

    If an existing NWP is not listed in this section of the preamble, 
we are proposing to reissue the NWP without changing it.
    NWP 3. Maintenance. We are proposing to clarify that stream channel 
excavation immediately adjacent to the structure or fill being 
maintained that involves discharges of dredged or fill material into 
waters of the United States and/or work in navigable waters of the 
United States is authorized under paragraph (a) and does not require a 
PCN. Examples of stream channel excavation activities that may be 
authorized under paragraph (a) include those necessary to facilitate 
minor deviations in a structure's configuration or filled area. This 
can occur when structures or fills are replaced with larger culverts or 
bridges that improve fish passage. Specifically, we are proposing to 
add ``Any stream channel modification, is limited to the minimum 
necessary for the repair, rehabilitation, or replacement of the 
structure or fill; such modifications must be immediately adjacent to 
the project'' to paragraph (a).
    To simplify and clarify the text, we propose to replace the word 
``and'' with ``and/or'' in the first sentence of paragraph (b) to 
indicate that the activity does not need to include the placement of 
new or additional riprap in order to qualify for the NWP. In paragraph 
(d) we propose to explicitly state beach restoration is not authorized 
by the NWP by removing beach restoration from the first sentence and 
adding a stand-alone sentence. In the Notification provision we propose 
to remove from the first part of the second sentence the phrase 
``[w]here maintenance dredging is proposed'' because paragraph (b) of 
the NWP is the only component of the NWP that requires a PCN. This 
deletion will simplify redundant and confusing text.

[[Page 9181]]

    NWP 5. Scientific Measurement Devices. We are proposing to add a 
sentence to explicitly require the removal of the device and any 
associated structures or fills at the conclusion of the study. 
Specifically, we are proposing to add the following sentence: ``Upon 
completion of the study the measuring device and any other structures 
or fills associated with that device (e.g., anchors, buoys, lines, 
etc.) must be removed and to the maximum extent practicable the site 
must be restored to pre-construction elevations after the removal of 
associated structures.'' We are proposing to add ``meteorological 
stations'' as an example of the types of scientific measuring devices 
authorized by this NWP since such devices are currently being used to 
collect meteorological data for planning offshore wind energy 
generation facilities. We are also proposing to add ``current gages'' 
and ``biological observation devices'' to the list of examples, because 
such instruments may be used to collect data for sites that are being 
considered for hydrokinetic energy generation facilities.
    NWP 6. Survey Activities. We are proposing to modify how 
exploratory trenches are backfilled by stating the work ``must not 
drain a water of the United States.'' This would make the NWP 
consistent with other NWPs that involve backfilling. We also propose to 
adjust the requirements for the temporary pads necessary to provide 
proper levels for equipment used for core sampling. Specifically, we 
propose to remove 25 cubic yard limit and replace it with a \1/10\-acre 
limit. The acreage limit for temporary pads applies to a single and 
complete project, as defined at 33 CFR 330.2(i).
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We 
are proposing to update the name of former Mineral Management Service 
to the Bureau of Ocean Energy Management, Regulation, and Enforcement.
    NWP 12. Utility Line Activities. We are proposing one minor change 
regarding how the calculation of loss of waters of the United States 
for a single and complete project with multiple components is made by 
replacing the phrase ``* * * the total discharge from a * * *'' with `` 
* * * the activity, in combination with all other activities included 
in one * * *'' to the access road component of the NWP. This adjustment 
would match the language from the utility line substation component of 
the NWP.
    NWP 13. Bank Stabilization. To encourage bank stabilization 
activities that use bioengineering techniques and other methods that 
may have less adverse environmental effects, we are proposing to modify 
paragraph (c) by removing the waiver provision and authorizing bank 
stabilization activities that utilize bioengineered techniques to 
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. This change would not authorize bank stabilization activities 
that involve hardening the bank with material such as sheet pile, 
riprap, concrete, etc. if the discharge exceeds one cubic yard per 
running foot. A separate form of Department of the Army authorization, 
such as an individual permit or regional general permit, would be 
required for such activities. Bioengineered techniques can slow erosion 
rates and can have beneficial effects on habitat for macroinvertebrates 
and fish and may include the use of living material or other material 
such as tree revetments or root wads.
    Because some bank stabilization activities require temporary 
structures or fills, or a site to be temporarily dewatered, we propose 
to add language authorizing these associated activities. This proposed 
language is consistent with that used to authorize the same activity in 
NWPs 3, 12, and 14.
    NWP 15. U.S. Coast Guard Approved Bridges. We are proposing to 
modify this NWP by removing the reference to the U.S. Coast Guard 
authorizing the discharge of dredged or fill material into waters of 
the United States as a part of their bridge permit, since their bridge 
permits do not authorize such activities. We are also proposing to 
reference the U.S. Coast Guard's bridge permitting authority under 
Section 9 of the Rivers and Harbors Act of 1899 and other applicable 
laws. The other applicable laws include: The International Bridge Act 
of 1972 (at 33 U.S.C. 535-535(i)), the General Bridge Act of 1946 (at 
33 U.S.C. 525, 528, 530, and 533), the Bridge Act of 1906 (at 33 U.S.C. 
491, 494, and 495); and the Rivers and Harbors Appropriation Act of 
1899 (at 33 U.S.C. 401, 403, 406, and 502). Because a bridge permit 
issued by the U.S. Coast Guard does not cover discharges of dredged or 
fill material into navigable waters of the United States, and such 
discharges are likely to be considered work that modifies those waters, 
we propose to add section 10 authority to this NWP to provide 
authorization under the Rivers and Harbors Act of 1899.
    NWP 20. Response Operations for Oil and Hazardous Substances. We 
are proposing to change the name of this NWP from ``Oil Spill Cleanup'' 
to ``Response Operations for Oil and Hazardous Substances'' to better 
describe the activities and types of materials authorized by the NWP.
    The proposed modification would also authorize a wider set of 
activities, specifically containment and mitigation, associated with a 
response operation's effort to manage a release of oil or hazardous 
substances.
    We are also proposing to modify the NWP to authorize work under a 
wider range of approved response plans or work approved by a Federal 
on-scene coordinator as designated by 40 CFR part 300.
    Additionally, we propose to modify this NWP to authorize training 
exercises for the cleanup of oil and hazardous substance by this NWP. 
These drills can take place on land and water and sometimes involve the 
use of temporary structures and fills used to contain spilt materials.
    NWP 21. Surface Coal Mining Activities. To help make a fully 
informed decision about whether or not to reissue NWP 21, we are 
soliciting comment on three options for this NWP. Option 1 would be to 
not reissue NWP 21. Option 2 would be to reissue NWP 21 with 
modifications, including a \1/2\-acre limit for losses of non-tidal 
waters of the United States, a 300 linear foot limit for the loss of 
stream bed (with a waiver for the loss of intermittent and ephemeral 
stream beds if the district engineer makes a written determination that 
the discharge will result in minimal adverse effects), and a provision 
prohibiting the use of NWP 21 to authorize discharges of dredged or 
fill material into waters of the United States associated with the 
construction of valley fills for surface coal mining activities. Option 
3 would be to reissue NWP 21 with the same modifications as described 
for Option 2, except there would be no provision prohibiting the use of 
NWP 21 to authorize discharges of dredged or fill material into waters 
of the United States associated with the construction of valley fills. 
Options 2 and 3 would not authorize discharges of dredged or fill 
material into tidal waters or non-tidal wetlands adjacent to tidal 
waters.
    The preferred option is Option 2, since the construction of valley 
fills for surface coal mining activities substantially alters the 
watersheds associated with headwater streams and has a greater 
potential to cause more than minimal adverse effects on the aquatic 
environment. Those changes to the watershed cause direct and indirect 
effects to downstream waters.
    Option 1, to not reissue NWP 21, would be consistent with a

[[Page 9182]]

determination that any discharge of dredge or fill material associated 
with surface coal mining activities, in any region of the country, 
might result in more than minimal adverse effects on the aquatic 
environment and thus warrant the more rigorous review associated with 
an individual permit. In contrast, the proposed modifications presented 
in Options 2 and 3 would authorize minor activities associated with 
surface coal mining activities such as the discharges of dredged or 
fill material to construct sediment ponds or minor road crossings. All 
the Options would require larger surface coal mining activities 
involving discharges of dredged or fill material into waters of the 
United States to be authorized by individual permits. In previously 
issued versions of NWP 21, there was no limit on losses of waters of 
the United States. Instead of acreage or linear foot limits the Corps 
relied on the following to ensure minimal adverse effects: (a) The 
implementation of environmental protections through SMCRA (e.g., 
preventing material damage to the hydrologic balance in the surrounding 
areas and minimizing adverse impacts to fish and wildlife habitat); 
and, (b) the requirement that the prospective permittee could not 
commence work in waters of the United States until he or she received 
written verification from the Corps district that the activity was 
authorized by NWP 21. Under Options 2 and 3, the Corps would continue 
to rely on these sources of assurance, along with the proposed new 
acreage and linear foot limits, to ensure minimal adverse effects. The 
Corps believes that this combination of safeguards is sufficient, 
particularly if discharges associated with valley fills are not 
authorized, and has thus identified Option 2 as its preferred option.
    We are also soliciting public comment on additional options that 
should be considered for the reissuance of NWP 21. In addition to the 
three options described above, we are proposing to change the title of 
this NWP by replacing the word ``Operations'' with ``Activities'' 
because the Corps only authorizes discharges of dredged or fill 
material into waters of the United States, not the operation of the 
surface coal mine. The operation of a surface coal mine is regulated 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
In addition, Clean Water Act Section 402 National Pollutant Discharge 
Elimination System permits may authorize discharges of pollutants other 
than dredge or fill material to waters of the United States, including 
those from outfall pipes of sediment ponds.
    On June 11, 2009, the Department of the Army, the Department of the 
Interior (DOI), and the U.S. Environmental Protection Agency (EPA) 
signed a Memorandum of Understanding (MOU) that addresses actions to 
strengthen the environmental review of Appalachian surface coal mining. 
The MOU includes an Interagency Action Plan (IAP) that was developed to 
reduce the adverse environmental effects of surface coal mining 
activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, 
Tennessee, Virginia, and West Virginia, while assuring that future 
mining remains consistent with the Clean Water Act and SMCRA. One of 
the short-term action items the Army agreed to do under the IAP was to 
issue a Federal Register notice proposing to modify NWP 21 to preclude 
its use to authorize discharges of fill material into streams for 
surface coal mining activities in the Appalachian region of these six 
states and to seek public comment on this proposal. On July 15, 2009, 
the Corps published a Federal Register notice (74 FR 34311) to solicit 
public comment on this proposal. As an interim measure to provide 
environmental protection while the Corps evaluated the comments 
received on the proposal to modify NWP 21, on June 18, 2010, the Corps 
suspended NWP 21 in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia (see 75 FR 34711).
    Since the current NWP 21 will expire on March 18, 2012, it would be 
more prudent to address the modification of NWP 21 in today's proposal, 
instead of making a separate decision on the July 15, 2009, proposal to 
modify NWP 21 in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia. We also believe 
that substantial changes to NWP 21 are necessary to ensure, at a 
national level, that it authorizes only those discharges of dredged or 
fill material into waters of the United States associated with surface 
coal mining activities that have minimal individual and cumulative 
adverse effects on the aquatic environment and other public interest 
review factors. Nationwide permit 21 has been used to authorize surface 
coal mining activities in at least 20 other states, such as states in 
the west and southeast, and we believe it is necessary to impose an 
acreage limit on NWP 21 to ensure that the surface coal mining 
activities in those other states result in minimal adverse effects.
    Division engineers have the authority to regionally condition this 
NWP to impose an acreage or linear foot limit or other special 
conditions, if there are concerns for the aquatic environment in a 
particular district, watershed, or other geographic region. The 
proposed modification of NWP 21 will provide an NWP for minor 
activities associated with surface coal mining activities. Pre-
construction notification is still required before any activities 
commence in waters of the United States and the applicant must receive 
authorization in writing from the Corps before beginning the activity.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. We are proposing to add ``the removal of small dams'' to 
the list of examples of activities that can be authorized by this NWP. 
In the reversion provision we are proposing to remove the phrase ``that 
has not been abandoned'' that modifies the term ``prior converted 
cropland'' because areas of prior converted cropland being used for 
wetland or stream enhancement or restoration that are eligible for this 
provision are subject to a binding agreement with the Natural Resources 
Conservation Service and have not been abandoned, so the qualifier is 
unnecessary.
    We are proposing to modify ``Notification'' provisions (1) and (2) 
by having stream restoration, rehabilitation, and enhancement 
activities conducted in accordance with binding agreements with the 
appropriate agencies or as voluntary actions documented by NRCS or a 
USDA Technical Service Provider be subject to the reporting provision 
instead. Additionally, we propose to modify notification provision (1) 
by adding the United States Forest Service to the list of Federal 
agencies that can develop stream or wetland enhancement, restoration, 
or establishment agreements. The ``Notification'' provision requires 
the permittee or appropriate Federal or state agency to notify the 
district engineer in accordance with general condition 30 (formerly 
general condition 27).
    NWP 29. Residential Developments. We are proposing to modify the 
waiver provision for activities resulting in the loss of greater than 
300 linear feet of intermittent and ephemeral stream bed to clarify 
that the district engineer will only issue the waiver after making a 
project-specific written determination that the activity will result in 
minimal adverse effects.
    NWP 31. Maintenance of Existing Flood Control Facilities. We are 
proposing to add language that states, in those cases where a Corps 
permit is required, the NWP authorizes the removal of vegetation from 
levees

[[Page 9183]]

associated with a flood control project. The removal of vegetation from 
a flood control levee may require a permit under Section 10 of the 
Rivers and Harbors Act of 1899 if it is considered to be work in 
navigable waters of the United States. Vegetation removal may also 
require Clean Water Act Section 404 authorization if it involves 
discharges of dredged or fill material into waters of the United 
States.
    NWP 39. Commercial and Institutional Developments. We are proposing 
to modify the waiver provision for activities resulting in the loss of 
greater than 300 linear feet of intermittent and ephemeral stream bed 
to clarify that the district engineer will only issue the waiver after 
making a project-specific written determination that the activity will 
result in minimal adverse effects.
    NWP 40. Agricultural Activities. We are proposing to modify the 
text of this NWP to impose a limit on stream bed impacts that mirrors 
the limits in other NWPs, such as NWPs 29 and 39. Currently, the 300 
linear foot limit for this NWP only applies to the relocation of 
ditches constructed in streams. The modification would apply to all 
stream impacts authorized by the NWP. Specifically, we propose to 
replace the last sentence of the fourth paragraph with: ``The discharge 
must not cause the loss of greater than \1/2\-acre of non-tidal waters 
of the United States, including the loss of no more than 300 linear 
feet of stream bed, unless for intermittent and ephemeral stream beds 
the district engineer waives the 300 linear foot limit by making a 
written determination concluding that the discharge will result in 
minimal adverse effects.''
    NWP 42. Recreational Facilities. We are proposing to modify the 
waiver provision for activities resulting in the loss of greater than 
300 linear feet of intermittent and ephemeral stream bed to clarify 
that the district engineer will only issue the waiver after making a 
project-specific written determination that the activity will result in 
minimal adverse effects.
    NWP 43. Stormwater Management Facilities. We are proposing to add 
``low impact development stormwater features'' to the examples of types 
of stormwater management facilities that are authorized by this NWP. 
Low impact development for stormwater management comprises a set of 
site design approaches and small-scale features that promote the use of 
natural systems for infiltration, evapotranspiration, and reuse of 
rainwater. The types of low impact development stormwater practices 
that would be eligible for this NWP could include bioretention 
features, swales and vegetated landscaping. We are also proposing to 
modify the waiver provision for activities resulting in the loss of 
greater than 300 linear feet of intermittent and ephemeral stream bed 
to clarify that the district engineer will only issue the waiver after 
making a project-specific written determination that the activity will 
result in minimal adverse effects.
    NWP 44. Mining Activities. To be consistent with other NWPs and 
ensure that the NWP authorizes only those activities with minimal 
adverse effects, we are proposing to add a 300 linear foot limit for 
the loss of stream bed, which for intermittent and ephemeral stream 
beds can be waived by the district engineer if he or she makes a 
written determination concluding that the discharge will result in 
minimal adverse effects.
    NWP 45. Repair of Uplands Damaged by Discrete Events. We are 
proposing to modify this NWP by adding a sentence to clarify that it 
does not authorize beach restoration. Beach nourishment or restoration 
activities may be authorized by individual permits or regional general 
permits.
    NWP 48. Existing Commercial Shellfish Aquaculture Activities. The 
modifications proposed for this NWP include authorizing the expansion 
of existing commercial shellfish aquaculture operations. We are 
proposing to remove the reporting requirement because we do not believe 
it is necessary to track all activities authorized by this NWP. Many 
existing commercial shellfish aquaculture activities have been in 
continuous operation for many years, and are subject to a multitude of 
Federal, state, and local regulations. We believe that our focus should 
be on reviewing those proposed commercial shellfish aquaculture 
activities that have the potential to result in more than minimal 
adverse effects on the aquatic environment. Such activities are those 
commercial shellfish aquaculture operations that exceed 100 acres in 
size, involve dredge harvesting, tilling, or harrowing in areas 
inhabited by submerged aquatic vegetation, or involve changes in 
operation, such as expansions, reconfigurations, relocations, changes 
in species cultivated, or changes in culture methods. Since many 
commercial shellfish aquaculture activities, especially those on the 
west coast, may affect listed or threatened species under the 
Endangered Species Act, the notification requirement in general 
condition 19, Endangered Species, will also result in these activities 
being reported to the Corps.
    We are also proposing to modify the notification thresholds by 
adding a pre-construction notification requirement for all activities 
that propose to expand the commercial production of shellfish beyond 
the existing project area.
    We are proposing to change the notification provision to require 
the prospective permittee to submit the information that was required 
for reporting under the current version of NWP 48. That information 
will be used with the information submitted in accordance with 
paragraph (b) of general condition 30, Pre-Construction Notification, 
to determine if the proposed activity will result in minimal individual 
and cumulative adverse effects on the aquatic environment and other 
public interest review factors.
    We are seeking comments on modifying NWP 48 to authorize new 
commercial shellfish aquaculture activities or alternatively, issuing a 
new NWP to authorize those activities that require DA authorization 
under Section 404 of the Clean Water Act and/or Section 10 of the 
Rivers and Harbors Act of 1899. We are also soliciting comments and 
suggestions regarding appropriate limits for new commercial shellfish 
aquaculture activities, as well as other terms and conditions that 
would be appropriate for authorizing new shellfish aquaculture 
activities with a nationwide permit to ensure minimal individual and 
cumulative adverse effects.
    NWP 49. Coal Remining Activities. We are proposing to modify this 
NWP to clarify how the 40% of newly mined area is determined. As an 
example, if there are 600 acres of land previously unreclaimed as a 
result of previous mining activities and the Corps agrees with the 
SMCRA agency's determination that there are 200 acres needed to 
adequately reclaim the 600 acres, then there are a total of 800 acres 
included in the previously mined area and area needed to be reclaimed. 
Given this, the amount of newly mined area eligible for the NWP is 320 
acres (40% of 800 acres). While the Corps acknowledges the SMCRA 
agency's expertise, the Corps will review the SMCRA agency's 
determination regarding the amount of previously unmined area necessary 
for the reclamation of the previously mined area and independently 
determine this area. This is necessary in order for the Corps to make 
informed decisions regarding whether the proposal satisfies the minimal 
adverse effects requirement of the NWP. We have also modified the 
notification provision by requiring the

[[Page 9184]]

prospective permittee to submit documentation with the PCN ``describing 
how the overall mining plan will result in a net increase in aquatic 
resource functions.''
    NWP 50. Underground Coal Mining Activities. To provide acreage and 
linear foot limits consistent with other NWPs and provide greater 
assurance that the NWP will only authorize activities with minimal 
adverse environmental effects, we are proposing to modify this NWP to 
impose a \1/2\-acre limit on losses of non-tidal waters of the United 
States, including the loss of no more than 300 linear feet of stream 
bed, unless for intermittent and ephemeral stream beds the district 
engineer waives the 300 linear foot limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects.

Discussion of Proposed New Nationwide Permits

    A. Land Based Renewable Energy Generation Facilities. We are 
proposing to issue a new NWP to authorize the discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal wetlands adjacent to tidal waters, for the construction, 
expansion, or modification of land-based renewable energy production 
facilities. Examples include infrastructure to generate solar 
(concentrating solar power and photovoltaic), biomass, wind or 
geothermal energy and their collection systems. Attendant features may 
include, but are not limited to roads, parking lots, utility lines, and 
storm water management facilities.
    We are proposing a \1/2\-acre limit for this NWP, including the 
loss of no more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives 
this 300 linear foot limit by making a written determination concluding 
that the discharge will result in minimal adverse effects. We believe 
the \1/2\-acre limit, as well as the 300 linear foot limit for stream 
impacts, will authorize only those activities that have minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Division engineers can regionally condition this NWP to lower the 
acreage or linear foot limit or otherwise limit its use. We are 
proposing to require pre-construction notification for all activities. 
We are seeking comments on this proposed NWP, including its terms and 
conditions, such as the proposed \1/2\-acre and 300 linear foot limits.
    B. Water-Based Renewable Energy Generation Pilot Projects. We are 
proposing to issue a new NWP to authorize structures and work in 
navigable waters of the United States and the discharges of dredged or 
fill material into waters of the United States, for the construction, 
expansion, and modification of hydrokinetic or wind energy generation 
pilot projects and their attendant features. This NWP also authorizes 
structures and infrastructure to collect energy as well as utility 
lines to transfer the energy to land-based distribution facilities.
    We are proposing a \1/2\-acre limit for this NWP, including the 
loss of no more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives 
this 300 linear foot limit by making a written determination concluding 
that the discharge will result in minimal adverse effects. We believe 
the \1/2\-acre limit, as well as the 300 linear foot limit for stream 
impacts, will authorize only those activities that have minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Division engineers can regionally condition this NWP to lower the 
acreage or linear foot limit or add additional restrictions on its use.
    The proposed NWP would also prohibit activities in danger zones and 
restricted areas established by the Corps, as well as anchorage areas 
and shipping safety fairways or traffic separation schemes designated 
by the U.S. Coast Guard. This NWP would not authorize structures in 
open water dredged material disposal areas designated by the Corps or 
EPA. In addition, the NWP would not authorize activities in coral 
reefs.
    We are proposing to require pre-construction notification for all 
activities. This proposed NWP would authorize activities that require 
section 10 and/or 404 authorization.
    We are proposing to add a note to this NWP (Note 1) to make it 
clear that if the proposed activity involves modification of an 
existing Corps project, a separate authorization from the Chief of 
Engineers is required under 33 U.S.C. 408 to alter that Corps project.
    The proposed NWP also includes Note 2, which instructs district 
engineers to provide a copy of the NWP verification to the National 
Oceanic and Atmospheric Administration (NOAA), National Ocean Service 
(NOS) for charting structures and utility lines in navigable waters of 
the United States to protect navigation.
    We are seeking comments on this proposed new NWP, including its 
terms and conditions, such as the proposed \1/2\-acre and 300 linear 
foot limits.

Discussion of Proposed Modifications to Nationwide Permit General 
Conditions

    In the 2007 NWPs we reordered the general conditions (GCs) to make 
them easier to read and to group together the GCs that are associated 
with environmental concerns and public interest review factors, 
followed by general conditions relating to administrative requirements. 
In this proposal, we are moving former general condition 28, Single and 
Complete Project, and renumbering it as general condition 16. The 
following GCs would be renumbered, but we are not proposing to make any 
changes to the text of those GCs: Proper Maintenance; Tribal Rights; 
Water Quality; Coastal Zone Management; Regional and Case-by-Case 
Conditions; Use of Multiple Nationwide Permits; and Transfer of 
Nationwide Permit Verifications.
    GC 2. Aquatic Life Movements. To provide added protection to the 
aquatic environment we are proposing to modify this GC by adding a 
statement requiring bottomless culverts to be used when practicable. We 
are proposing to provide an example of a circumstance where it would 
not be practicable to use a bottomless culvert, such as sites where 
sub-grade instability would make it unsafe to use a bottomless culvert. 
The proposed modification of this general condition would also require 
the bottom of the culvert to be below the grade of the stream bed 
unless the stream bed consists of bedrock or boulders.
    GC 14. Discovery of Previously Unknown Remains and Artifacts. We 
are proposing to add a new general condition to address circumstances 
when previously unknown historic, cultural or archeological remains or 
artifacts are discovered during construction of the authorized 
activity. The Corps uses a similar general condition (number 3) on all 
standard permits as prescribed by 33 CFR part 325, Appendix A. This GC 
would also require a permittee, to the maximum extent practicable, to 
stop activities that would adversely affect those remains and artifacts 
until the required coordination has been completed.
    GC 17. Wild and Scenic Rivers. We are proposing to modify this 
general condition to clarify that project proponents should obtain 
information from the specific Federal land management agency 
responsible for the designated Wild and Scenic River or study river.
    GC 19. Endangered Species. We are proposing to modify paragraph (a) 
of this general condition to clarify that direct and indirect effects 
are to be taken into account when assessing

[[Page 9185]]

whether an activity may jeopardize the continued existence of a 
threatened or endangered species or a species proposed for such 
designation, or destroy or adversely modify the critical habitat of 
such species.
    We are also proposing to modify paragraph (e) to include 
definitions of ``take'' and ``harm''. We are proposing to add a new 
paragraph (f) to provide prospective permittees with guidance on where 
they can obtain information on the locations of listed species and 
their critical habitat. That guidance was previously provided in 
paragraph (e).
    GC 20. Historic Properties. (Formerly general condition 18.) We are 
proposing to modify paragraph (c) by stating district engineers will 
comply with the current procedures for addressing the requirements of 
Section 106 of the National Historic Preservation Act. The Regulatory 
Program's procedures for the protection of historic properties are 
provided in Appendix C of 33 CFR part 325. On April 25, 2005, we issued 
revised interim guidance for implementing Appendix C in light of the 
Advisory Council on Historic Preservation's revised regulations at 36 
CFR part 800. We believe this general condition should have a more 
general reference to the Corps Regulatory Program's current procedures 
for section 106 compliance, since we are using Appendix C, the revised 
interim guidance, and other guidance for section 106 compliance.
    GC 21. Designated Critical Resource Waters. (Formerly general 
condition 19.) We are proposing to modify this general condition to 
clarify the types of areas subject to the GC by altering how NOAA's 
marine sanctuaries are described, which categories of critical resource 
waters are always subject to this general condition, and which 
categories of critical resource waters can be designated by a district 
engineer after a public notice and comment process. This general 
condition will also specify that state-designated outstanding national 
resource waters are intended for inclusion in the general condition. We 
also propose making state natural heritage sites subject to the 
district engineer's designation process in order to provide the public 
an opportunity to comment on a proposed designation of new critical 
resource waters and any effects the designation of those waters will 
have on local NWP program implementation. States may request the 
district engineer to consider designating state natural heritage sites 
as critical resource waters subject to this general condition. For 
those NWPs listed in paragraph (b), district engineers determine on a 
case-by-case basis whether special permit conditions are needed to 
protect critical resource waters, or whether discretionary authority to 
require an individual permit should be exercised.
    We are proposing to add proposed new NWPs A and B to the list of 
NWPs in paragraph (a) that cannot be used to authorize activities in 
designated critical resource waters.
    GC 22. Mitigation. (Formerly general condition 20.) We are 
proposing to modify paragraph (g) so it better reflects our 
compensatory mitigation regulations at 33 CFR part 332. Specifically, 
we would replace the word ``arrangements'' with ``programs'' in 
describing in-lieu fee programs. We are also proposing to replace the 
phrase ``activity-specific'' with ``permittee-responsible'' when 
referring to compensatory mitigation implemented by the permittee. 
Another proposed change is the addition of a provision stating that for 
activities resulting in the loss of marine or estuarine resources, 
permittee-responsible compensatory mitigation may be environmentally 
preferable if there are no mitigation banks or in-lieu fee programs in 
the area that have marine or estuarine credits available for sale or 
transfer to the permittee. This will encourage the use of in-kind 
mitigation to compensate for the losses of marine or estuarine 
resources. Lastly, we propose to revise the last sentence of paragraph 
(g) to state that the party responsible for providing the required 
permittee-responsible mitigation, including any required long-term 
management, shall be identified in the special conditions of the NWP 
verification.
    GC 23. Safety of Impoundment Structures. We are proposing to add 
this general condition to clarify that district engineers can request 
that a non-Federal applicant demonstrate the proposed impoundment 
structure is designed for safety in accordance with 33 CFR 320.4(k).
    GC 29. Compliance Certification. (Formerly general condition 26.) 
We are proposing to make minor changes to clarify that the Corps 
provides the permittee with the necessary document to complete and 
return to the Corps as the signed certification.
    GC 30. Pre-Construction Notification. (Formerly general condition 
27.) We are proposing to rearrange paragraph (d)(2) to make it clearer 
that all NWP activities resulting in the loss of greater than \1/2\-
acre of waters of the United States require agency coordination. We are 
also proposing to require agency coordination for an NWP 21, 29, 39, 
40, 42, 43, 50, A, or B PCN when the proposed activity will result in 
the loss of greater than 1,000 linear feet of intermittent and 
ephemeral stream bed. This is a subset of cases where a waiver by the 
district engineer is required for a loss of greater than 300 linear 
feet of intermittent and ephemeral stream bed. The Corps believes that 
the addition of this coordination requirement for a subset of waivers, 
along with the added requirement of written minimal adverse effects 
determinations for all waivers and further specification of factors 
that need to be taken into account in minimal effects determinations 
(see below), appropriately balances the need to ensure that any waiver 
does not result in more than minimal adverse effects, individually and 
cumulatively, with the regulated public's expectation that the Corps 
will issue NWP verifications in a timely manner. The Corps requests 
comment on this approach for strengthening the waiver provisions of the 
affected NWPs.
    In paragraph (e), we are proposing to clarify that the district 
engineer must make a written determination of minimal adverse effects 
before waiving the 300 linear foot limit on impacts to intermittent or 
ephemeral streams or an otherwise applicable limit, as provided for in 
NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, A or B. More generally, we 
are also proposing to clarify that the district engineer is to consider 
direct and indirect effects caused by the NWP activity when determining 
if an NWP activity results in minimal adverse effects on the aquatic 
environment, individually and cumulatively. Specifically, we are 
proposing to add this language after the first sentence of paragraph 
(e)(1): ``If an applicant requests a waiver of the 300 linear foot 
limit on impacts to intermittent or ephemeral streams or an otherwise 
applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 
43, 44, 50, A or B, the district engineer will only grant the waiver 
upon a written determination that the discharge will result in minimal 
adverse effects. When making minimal effects determinations the 
district engineer will consider the direct and indirect effects caused 
by the NWP activity.''
    We are also proposing to add language to paragraph (e)(1) that 
describes factors to consider when making minimal effects 
determinations for the purposes of the NWPs. Functional assessments may 
be used to make minimal effects determinations, if appropriate methods 
are available and practicable to use for a particular NWP activity. 
District engineers may also add special conditions to NWP 
authorizations to address site-specific environmental concerns and 
impose requirements to

[[Page 9186]]

ensure that authorized activities result in minimal adverse effects.

Discussion of Proposed Modifications to Existing Nationwide Permit 
Definitions

    We are proposing changes to some of the NWP definitions. If a 
definition is not discussed below, we are not proposing any substantive 
changes to that definition.
    Compensatory Mitigation. We are proposing to modify this definition 
to be consistent with the definition of this term found in 33 CFR 
332.2.
    Re-establishment. We are proposing to modify this definition by 
adding ``and functions'' to the end of the last sentence in order to be 
consistent with the definition of this term found in 33 CFR 332.2.
    Single and Complete Project. We are proposing to modify this 
definition by splitting it into two definitions pertaining to linear 
(Single and Complete Linear Projects) and non-linear (Single and 
Complete Non-Linear Projects) projects in order to clarify how the 
``independent utility'' test applies to non-linear projects.

Discussion of New Proposed Nationwide Permit Definitions

    We are proposing to add three new definitions to assist those using 
the nationwide permits. As discussed above, we are proposing separate 
definitions of the terms ``single and complete linear project'' and 
``single and complete non-linear project.'' We are also proposing to 
add a definition of the term ``high tide line.'' The definition of 
``high tide line'' is adapted from the definition at 33 CFR 328.3(d).

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    The proposed NWPs will increase the number of permittees who are 
required to submit a PCN. The content of the PCN is not changed from 
the current NWPs, except for NWP 48, where information from the current 
reporting requirement is being moved into the PCN, but the paperwork 
burden will increase because of the increased number of PCNs submitted. 
For the two new proposed NWPs A and B, the paperwork burden would be an 
estimated 3,300 hours per year for 300 PCNs. This is based on an 
average burden to complete and submit a PCN of 11 hours. However, 
activities that would be authorized by the two proposed new NWPs are 
currently authorized by alternative forms of Department of the Army 
(DA) permits (i.e., standard permits, letters of permission, or 
regional general permits), with many needing a standard permit 
application which requires an average burden of 11 hours to complete 
and submit. Since the paperwork burden is similar for standard permit 
applications and PCNs, we anticipate no additional paperwork burden if 
the two proposed NWPs are issued. Similarly, we anticipate no 
additional burden from the increased information required in a PCN for 
NWP 48 because the same information is currently being requested 
through the reporting requirement, which we are proposing to eliminate. 
Prospective permittees who are required to submit a PCN for a 
particular NWP, or who are requesting verification that a particular 
activity qualifies for NWP authorization, may use the current standard 
Department of the Army permit application form.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under Section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003, 
which expires on August 31, 2012).

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the proposed rule is a ``significant regulatory action'' and the 
draft rule was submitted to OMB for review.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The proposed issuance and modification of NWPs does not 
have federalism implications. We do not believe that the proposed NWPs 
will have substantial direct effects on the States, on the relationship 
between the Federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
The proposed NWPs will not impose any additional substantive 
obligations on State or local governments. Therefore, Executive Order 
13132 does not apply to this proposal.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the proposed issuance and 
modification of NWPs on small entities, a small entity is defined as: 
(1) A small business based on Small Business Administration size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise which is independently owned and operated and 
is not dominant in its field.

[[Page 9187]]

    The statues under which the Corps issues, reissues, or modifies 
nationwide permits are Section 404(e) of the Clean Water Act (33 U.S.C. 
1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33 
U.S.C. 403). Under section 404, Department of the Army (DA) permits are 
required for discharges of dredged or fill material into waters of the 
United States. Under section 10, DA permits are required for any 
structures or other work that affect the course, location, or condition 
of navigable waters of the United States. Small entities proposing to 
discharge dredged or fill material into waters of the United States 
and/or conduct work in navigable waters of the United States must 
obtain DA permits to conduct those activities, unless a particular 
activity is exempt from those permit requirements. Individual permits 
and general permits can be issued by the Corps to satisfy the permit 
requirements of these two statutes. Nationwide permits are a form of 
general permit issued by the Chief of Engineers.
    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than five years. If the current NWPs are not reissued, they 
will expire on March 18, 2012, and small entities and other project 
proponents would be required to obtain alternative forms of DA permits 
(i.e., standard permits, letters of permission, or regional general 
permits) for activities involving discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters of the United States. Regional general permits that 
authorize similar activities as the NWPs may be available in some 
geographic areas, but small entities conducting regulated activities 
outside those geographic areas would have to obtain individual permits 
for activities that require DA permits.
    When compared to the compliance costs for individual permits, most 
of the terms and conditions of the proposed NWPs are expected to result 
in decreases in the costs of complying with the permit requirements of 
sections 10 and 404. The anticipated decrease in compliance cost 
results from the lower cost of obtaining NWP authorization instead of 
standard permits. Unlike standard permits, NWPs authorize activities 
without the requirement for public notice and comment on each proposed 
activity.
    Another requirement of Section 404(e) of the Clean Water Act is 
that general permits, including nationwide permits, authorize only 
those activities that result in minimal adverse environmental effects, 
individually and cumulatively. The terms and conditions of the NWPs, 
such as acreage or linear foot limits, are imposed to ensure that the 
NWPs authorize only those activities that result in minimal adverse 
effects on the aquatic environment and other public interest review 
factors.
    After considering the economic impacts of the proposed nationwide 
permits on small entities, I certify that this action will not have a 
significant impact on a substantial number of small entities. Small 
entities may obtain required DA authorizations through the NWPs, in 
cases where there are applicable NWPs authorizing those activities and 
the proposed work will result in minimal adverse effects on the aquatic 
environment and other public interest review factors. The terms and 
conditions of the revised NWPs will not impose substantially higher 
costs on small entities than those of the existing NWPs. If an NWP is 
not available to authorize a particular activity, then another form of 
DA authorization, such as an individual permit or regional general 
permit, must be secured. However, as noted above, we expect a slight to 
moderate increase in the number of activities than can be authorized 
through NWPs, because we are adding two new NWPs, and we are removing 
some limitations in existing NWPs and replacing them with PCN 
requirements that will allow the district engineer to judge whether any 
adverse effects of the proposed project are more than minimal, and 
authorize the project under an NWP if they are not.
    We are interested in the potential impacts of the proposed NWPs on 
small entities and welcome comments on issues related to such impacts.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    We have determined that the proposed NWPs do not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. The proposed NWPs are generally consistent with 
current agency practice, do not impose new substantive requirements and 
therefore do not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, this proposal is not subject to the requirements of Sections 
202 and 205 of the UMRA. For the same reasons, we have determined that 
the proposed NWPs contain no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
proposed issuance and modification of NWPs is not subject to the 
requirements of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria,

[[Page 9188]]

we must evaluate the environmental health or safety effects of the 
proposed rule on children, and explain why the regulation is preferable 
to other potentially effective and reasonably feasible alternatives.
    The proposed NWPs are not subject to this Executive Order because 
they are not economically significant as defined in Executive Order 
12866. In addition, the proposed NWPs do not concern an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    The proposal to issue NWPs does not have tribal implications. It is 
generally consistent with current agency practice and will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. Therefore, Executive Order 13175 does not 
apply to this proposal. However, in the spirit of Executive Order 
13175, we specifically request comment from Tribal officials on the 
proposed rule. Each Corps district will be conducting government-to-
government consultation with Tribes, to identify regional conditions or 
other local NWP modifications that may be necessary to protect aquatic 
resources of interest to Tribes, as part of the Corps responsibility to 
protect trust resources.

Environmental Documentation

    A draft decision document, which includes a draft environmental 
assessment and Finding of No Significant Impact (FONSI) has been 
prepared for each proposed NWP. These draft decision documents are 
available at: http://www.regulations.gov (docket ID number COE-2010-
0035). They are also available by contacting Headquarters, U.S. Army 
Corps of Engineers, Operations and Regulatory Community of Practice, 
441 G Street, NW., Washington, DC 20314-1000.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing the final NWPs and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The proposed NWPs are not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The proposed NWPs are not expected to negatively impact any 
community, and therefore are not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities.

Executive Order 13211

    The proposed NWPs are not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

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.).

    Dated: February 9, 2011.
MG William T. Grisoli,
Deputy Commanding General for Civil and Emergency Operations.

Nationwide Permits, Conditions, Further Information, and Definitions

A. Index of Nationwide Permits, Conditions, Further Information, and 
Definitions 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 and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil and Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities

[[Page 9189]]

45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Existing Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
A. Land-Based Renewable Energy Generation Facilities
B. Water-Based Renewable Energy Generation Pilot Projects

Nationwide Permit General Conditions

1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Discovery of Previously Unknown Remains and Artifacts
15. Proper Maintenance
16. Single and Complete Project
17. Wild and Scenic Rivers
18. Tribal Rights
19. Endangered Species
20. Historic Properties
21. Designated Critical Resource Waters
22. Mitigation
23. Safety of Impoundment Structures
24. Water Quality
25. Coastal Zone Management
26. Regional and Case-by-Case Conditions
27. Use of Multiple Nationwide Permits
28. Transfer of Nationwide Permit Verifications
29. Compliance Certification
30. Pre-Construction Notification

Further Information

Definitions

Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody

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, chapter I, 
subchapter C, part 66). (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. (a) 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 that are necessary to make the 
repair, rehabilitation, or replacement are authorized. Any stream 
channel modification is limited to the minimum necessary for the 
repair, rehabilitation, or replacement of the structure or fill; such 
modifications must be immediately adjacent to the project. This NWP 
also authorizes the repair, rehabilitation, or replacement of those 
structures or fills destroyed or damaged by storms, floods, fire or 
other discrete events, provided the repair, rehabilitation, or 
replacement is commenced, or is under contract to commence, within two 
years of the date of their destruction or damage. In cases of 
catastrophic events, such as hurricanes or tornadoes, this two-year 
limit may be waived by the district engineer, provided the permittee 
can demonstrate funding, contract, or other similar delays.
    (b) This NWP also authorizes the removal of accumulated sediments 
and debris in the vicinity of and within existing structures (e.g., 
bridges, culverted road crossings, water intake structures, etc.) and/
or the placement of new or additional riprap to protect the structure. 
The removal of sediment is limited to the minimum necessary to restore 
the waterway in the immediate vicinity of the structure to the 
approximate dimensions that existed when the structure was built, but 
cannot extend further than 200 feet in any direction from the 
structure. This 200 foot limit does not apply to maintenance dredging 
to remove accumulated sediments blocking or restricting outfall and 
intake structures or to maintenance dredging to remove accumulated 
sediments from canals associated with outfall and intake structures. 
All dredged or excavated materials must be deposited and retained in an 
upland area unless otherwise specifically approved by the district 
engineer under separate authorization. The placement of riprap must be 
the minimum necessary to protect the structure or to ensure the safety 
of the structure. Any bank stabilization measures not directly 
associated with the structure will require a separate authorization 
from the district engineer.
    (c) This NWP also authorizes temporary structures, fills, and work 
necessary to conduct the maintenance activity. Appropriate measures 
must be taken to maintain normal downstream flows and minimize flooding 
to the maximum extent practicable, when temporary structures, work, and 
discharges, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    (d) This NWP does not authorize maintenance dredging for the 
primary purpose of navigation. This NWP does not authorize beach 
restoration. This NWP does not authorize new stream channelization or 
stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 30). The pre-construction notification must include 
information regarding the original design capacities and configurations 
of the outfalls, intakes, small impoundments, and canals. (Sections 10 
and 404)
    Note: This NWP authorizes the repair, rehabilitation, or 
replacement of any

[[Page 9190]]

previously authorized structure or fill that does not qualify for the 
Clean Water Act Section 404(f) exemption for maintenance.
    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, and clam and oyster digging, and small fish 
attraction devices such as open water fish concentrators (sea kites, 
etc.). 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. Devices, whose purpose is to 
measure and record scientific data, such as staff gages, tide and 
current gages, meteorological stations, water recording and biological 
observation 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. Upon completion of the study, 
the measuring device and any other structures or fills associated with 
that device (e.g., anchors, buoys, lines, etc.) must be removed and, to 
the maximum extent practicable, the site must be restored to pre-
construction elevations. (Sections 10 and 404)
    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, and historic resources surveys. For the purposes of this NWP, 
the term ``exploratory trenching'' means mechanical land clearing of 
the upper soil profile to expose bedrock or substrate, for the purpose 
of mapping or sampling the exposed material. The area in which the 
exploratory trench is dug must be restored to its pre-construction 
elevation upon completion of the work and must not drain a water of the 
United States. In wetlands, the top 6 to 12 inches of the trench should 
normally be backfilled with topsoil from the trench. This NWP 
authorizes the construction of temporary pads, provided the discharge 
does not exceed \1/10\-acre in waters of the U.S. 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 are not authorized 
by this NWP; the plugging of such wells is authorized. Fill placed for 
roads and other similar activities is not authorized by this NWP. The 
NWP does not authorize any permanent structures. The discharge of 
drilling mud and cuttings may require a permit under Section 402 of the 
Clean Water Act. (Sections 10 and 404)
    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction or modification of outfall structures and 
associated intake structures, where the effluent from the outfall is 
authorized, conditionally authorized, or specifically exempted by, or 
that are otherwise in compliance with regulations issued under the 
National Pollutant Discharge Elimination System Program (Section 402 of 
the Clean Water Act). The construction of intake structures is not 
authorized by this NWP, unless they are directly associated with an 
authorized outfall structure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)
    8. Oil and Gas Structures on the Outer Continental Shelf. 
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, Bureau of Ocean 
Energy Management, Regulation, and Enforcement. 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). The district 
engineer will review such proposals to ensure compliance with the 
provisions of the fairway regulations in 33 CFR 322.5(l). Any Corps 
review under this NWP 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (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 the U.S. Coast Guard has 
established such areas for that purpose. (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 Activities. Activities required for the 
construction, maintenance, repair, and removal of utility lines and 
associated facilities in waters of the United States, provided the 
activity does not result in the loss of greater than \1/2\-acre of 
waters of the United States.
    Utility lines: This NWP authorizes the construction, maintenance, 
or repair of utility lines, including outfall and intake structures, 
and the associated excavation, backfill, or bedding for the utility 
lines, in all waters of the United States, provided there is no change 
in pre-construction contours. A ``utility line'' is defined as any pipe 
or pipeline for the transportation of any gaseous, liquid, liquescent, 
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 that drain a water of the 
United States, such as drainage tile or french drains, but it does 
apply to pipes conveying drainage from another area.
    Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, provided the material is not placed in such a manner that it is 
dispersed by currents or other forces. The district engineer may extend 
the period of temporary side casting for no more than a total of 180 
days, where appropriate. In wetlands, the top 6 to 12 inches of the 
trench should normally be backfilled with topsoil from the trench. The 
trench cannot be constructed or backfilled in such a manner as to drain 
waters of the United States (e.g., backfilling with extensive gravel 
layers, creating a french drain effect). Any exposed slopes and stream 
banks must be stabilized immediately upon completion of the utility 
line crossing of each waterbody.
    Utility line substations: This NWP authorizes the construction, 
maintenance, or expansion of substation facilities associated with a 
power line or

[[Page 9191]]

utility line in non-tidal waters of the United States, provided the 
activity, in combination with all other activities included in one 
single and complete project, does not result in the loss of greater 
than \1/2\-acre of waters of the United States. This NWP does not 
authorize discharges into non-tidal wetlands adjacent to tidal waters 
of the United States to construct, maintain, or expand substation 
facilities.
    Foundations for overhead utility line towers, poles, and anchors: 
This NWP authorizes the construction or maintenance of foundations for 
overhead utility line towers, poles, and anchors in all waters of the 
United States, provided the foundations are the minimum size necessary 
and separate footings for each tower leg (rather than a larger single 
pad) are used where feasible.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of utility lines, including 
overhead power lines and utility line substations, in non-tidal waters 
of the United States, provided the activity, in combination with all 
other activities included in one single and complete project, does not 
cause the loss of greater than \1/2\-acre of non-tidal waters of the 
United States. This NWP does not authorize discharges into non-tidal 
wetlands adjacent to tidal waters for access roads. Access roads must 
be the minimum width necessary (see Note 2, below). Access roads must 
be constructed so that the length of the road minimizes any adverse 
effects on waters of the United States and must be as near as possible 
to pre-construction contours and elevations (e.g., at grade corduroy 
roads or geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States 
must be properly bridged or culverted to maintain surface flows.
    This NWP may authorize utility lines in or affecting navigable 
waters of the United States even if there is no associated discharge of 
dredged or fill material (See 33 CFR Part 322). Overhead utility lines 
constructed over section 10 waters and utility lines that are routed in 
or under section 10 waters without a discharge of dredged or fill 
material require a section 10 permit.
    This NWP also authorizes temporary structures, fills, and work 
necessary to conduct the utility line activity. Appropriate measures 
must be taken to maintain normal downstream flows and minimize flooding 
to the maximum extent practicable, when temporary structures, work, and 
discharges, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if any of the following criteria are met: (1) The activity involves 
mechanized land clearing in a forested wetland for the utility line 
right-of-way; (2) a section 10 permit is required; (3) the utility line 
in waters of the United States, excluding overhead lines, exceeds 500 
feet; (4) the utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to a stream 
bed that is within that jurisdictional area; (5) discharges that result 
in the loss of greater than \1/10\-acre of waters of the United States; 
(6) permanent access roads are constructed above grade in waters of the 
United States for a distance of more than 500 feet; or (7) permanent 
access roads are constructed in waters of the United States with 
impervious materials. (See general condition 30.) (Sections 10 and 404)

    Note 1: Where the proposed utility line is constructed or 
installed in navigable waters of the United States (i.e., section 10 
waters), copies of the pre-construction notification and NWP 
verification will be sent by the Corps to the National Oceanic and 
Atmospheric Administration (NOAA), National Ocean Service (NOS), for 
charting the utility line to protect navigation.

    Note 2: Access roads used for both construction and maintenance 
may be authorized, provided they meet the terms and conditions of 
this NWP. Access roads used solely for construction of the utility 
line must be removed upon completion of the work, in accordance with 
the requirements for temporary fills.

    Note 3: Pipes or pipelines used to transport gaseous, liquid, 
liquescent, or slurry substances over navigable waters of the United 
States are considered to be bridges, not utility lines, and may 
require a permit from the U.S. Coast Guard pursuant to Section 9 of 
the Rivers and Harbors Act of 1899. However, any discharges of 
dredged or fill material into waters of the United States associated 
with such pipelines will require a section 404 permit (see NWP 15).

    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion prevention, provided the activity meets all of the following 
criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;
    (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, unless the permittee utilizes 
bioengineering techniques to accomplish the bank stabilization;
    (d) The activity does not involve discharges of dredged or fill 
material into special aquatic sites, unless the district engineer 
waives this criterion by making a written determination concluding that 
the discharge will result in minimal adverse effects;
    (e) No material is of the type, or is placed in any location, or in 
any manner, to impair surface water flow into or out of any water of 
the United States;
    (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 not a stream channelization activity.
    This NWP also authorizes temporary structures, fills, and work 
necessary to construct the bank stabilization activity. Appropriate 
measures must be taken to maintain normal downstream flows and minimize 
flooding to the maximum extent practicable, when temporary structures, 
work, and discharges, including cofferdams, are necessary for 
construction activities, access fills, or dewatering of construction 
sites. Temporary fills must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary fills 
must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges into 
special aquatic sites; or (2) is in excess of 500 feet in length. (See 
general condition 30.) (Sections 10 and 404)
    14. Linear Transportation Projects. Activities required for the 
construction, expansion, modification, or improvement of linear 
transportation projects (e.g., roads, highways, railways,

[[Page 9192]]

trails, airport runways, and taxiways) in waters of the United States. 
For linear transportation projects in non-tidal waters, the discharge 
cannot cause the loss of greater than \1/2\-acre of waters of the 
United States. For linear transportation projects in tidal waters, the 
discharge cannot cause the loss of greater than \1/3\-acre of waters of 
the United States. Any stream channel modification, including bank 
stabilization, is limited to the minimum necessary to construct or 
protect the linear transportation project; such modifications must be 
in the immediate vicinity of the project.
    This NWP also authorizes temporary structures, fills, and work 
necessary to construct the linear transportation project. Appropriate 
measures must be taken to maintain normal downstream flows and minimize 
flooding to the maximum extent practicable, when temporary structures, 
work, and discharges, including cofferdams, are necessary for 
construction activities, access fills, or dewatering of construction 
sites. Temporary fills must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary fills 
must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    This NWP cannot be used to authorize non-linear features commonly 
associated with transportation projects, such as vehicle maintenance or 
storage buildings, parking lots, train stations, or aircraft hangars.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The loss of waters of the United States exceeds \1/10\-acre; or 
(2) there is a discharge in a special aquatic site, including wetlands. 
(See general condition 30.) (Sections 10 and 404)

    Note: Some discharges for the construction of farm roads or 
forest roads, or temporary roads for moving mining equipment, may 
qualify for an exemption under Section 404(f) of the Clean Water Act 
(see 33 CFR 323.4).

    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of a bridge across 
navigable waters of the United States, including cofferdams, abutments, 
foundation seals, piers, and temporary construction and access fills, 
provided the construction of the bridge structure has been authorized 
by the U.S. Coast Guard under Section 9 of the Rivers and Harbors Act 
of 1899 and other applicable laws. Causeways and approach fills are not 
included in this NWP and will require a separate section 404 permit. 
(Sections 10 and 404)
    16. Return Water From Upland Contained Disposal Areas. Return water 
from an upland contained dredged material disposal area. 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 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. The dredging activity may require a section 404 permit (33 
CFR 323.2(d)), and will require a section 10 permit if located in 
navigable waters of the United States. (Section 404)
    17. Hydropower Projects. Discharges of dredged or fill material 
associated with hydropower projects having: (a) Less than 5,000 kW of 
total generating capacity at existing reservoirs, where the project, 
including the fill, is licensed by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act of 1920, as amended; or 
(b) a licensing exemption granted by the FERC 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Section 404)
    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the United States, provided the activity meets all 
of the following criteria:
    (a) The quantity of discharged material and the volume of area 
excavated do not exceed 25 cubic yards below the plane of the ordinary 
high water mark or the high tide line;
    (b) The discharge will not cause the loss of more than \1/10\-acre 
of waters of the United States; and
    (c) The discharge is not placed for the purpose of a stream 
diversion.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge or the volume of area excavated exceeds 10 cubic 
yards below the plane of the ordinary high water mark or the high tide 
line, or (2) the discharge is in a special aquatic site, including 
wetlands. (See general condition 30.) (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 waters). 
This NWP does not authorize the dredging or degradation through 
siltation of coral reefs, sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist but may not be present in a given year), anadromous 
fish spawning areas, or wetlands, or the connection of canals or other 
artificial waterways to navigable waters of the United States (see 33 
CFR 322.5(g)). (Sections 10 and 404)
    20. Response Operations for Oil and Hazardous Substances. 
Activities conducted in response to a discharge or release of oil and 
hazardous substances that are subject to the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300) including 
containment, cleanup, and mitigation efforts, provided that the 
activities are done under either: (1) The Spill Control and 
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or 
oversight of the Federal on-scene coordinator designated by 40 CFR part 
300; or (3) any approved existing state, regional or local contingency 
plan provided that the Regional Response Team (if one exists in the 
area) concurs with the proposed response efforts. This NWP also 
authorizes activities required for the cleanup of oil releases in 
waters of the United States from electrical equipment that are governed 
by EPA's polychlorinated biphenyl spill response regulations at 40 CFR 
part 761. This NWP also authorizes the use of temporary structures and 
fills in waters of the U.S. for spill response training exercises. 
(Sections 10 and 404)
    21. Surface Coal Mining Activities. We are seeking comment on the 
following three options:
    Option 1--Do not reissue NWP 21.
    Option 2 (Preferred Option)--21. Surface Coal Mining Activities. 
Discharges of dredged or fill material into waters of the United States 
associated with surface coal mining and reclamation operations provided 
the activities are already authorized, or are currently being processed 
by states with approved programs under Title V of the Surface Mining 
Control and Reclamation Act of 1977 or as part of an integrated permit 
processing procedure by the Department of Interior (DOI), Office of 
Surface Mining Reclamation and Enforcement (OSMRE).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including

[[Page 9193]]

the loss of no more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in minimal adverse effects. This NWP does not 
authorize discharges into tidal waters or non-tidal wetlands adjacent 
to tidal waters.
    This NWP does not authorize discharges of dredged or fill material 
into waters of the United States associated with the construction of 
valley fills.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 30.) (Sections 
10 and 404)
    Option 3--21. Surface Coal Mining Activities. Discharges of dredged 
or fill material into waters of the United States associated with 
surface coal mining and reclamation operations provided the activities 
are already authorized, or are currently being processed by states with 
approved programs under Title V of the Surface Mining Control and 
Reclamation Act of 1977 or as part of an integrated permit processing 
procedure by the Department of Interior (DOI), Office of Surface Mining 
Reclamation and Enforcement (OSMRE).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into tidal waters or non-tidal wetlands adjacent to tidal 
waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 30.) (Sections 
10 and 404)
    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 maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) the activity is conducted in a 
special aquatic site, including coral reefs and wetlands. (See general 
condition 30.) If condition 1 above is triggered, the permittee cannot 
commence the activity until informed by the district engineer that 
compliance with the ``Historic Properties'' general condition is 
completed. (Sections 10 and 404)

    Note 1: If a removed vessel is disposed of in waters of the 
United States, a permit from the U.S. EPA may be required (see 40 
CFR 229.3). If a Department of the Army permit is required for 
vessel disposal in waters of the United States, separate 
authorization will be required.

    Note 2: Compliance with general condition 19, Endangered 
Species, and general condition 20, Historic Properties, is required 
for all NWPs. The concern with historic properties is emphasized in 
the notification requirements for this NWP because of the likelihood 
that submerged vessels may be historic properties.

    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity 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
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions, including pre-construction notification, for authorization 
of an agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 30). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letters. (Sections 10 and 404)

    Note: The agency or department may submit an application for an 
activity believed to be categorically excluded to the Office of the 
Chief of Engineers (Attn: CECW-CO). Prior to approval for 
authorization under this NWP of any agency's activity, the Office of 
the Chief of Engineers will solicit public comment. As of the date 
of issuance of this NWP, agencies with approved categorical 
exclusions are the: Bureau of Reclamation, Federal Highway 
Administration, and U.S. Coast Guard. Activities approved for 
authorization under this NWP as of the date of this notice are found 
in Corps Regulatory Guidance Letter 05-07, which is available at: 
http://www.usace.army.mil/CECW/Pages/rglsindx.aspx. Any future 
approved categorical exclusions will be announced in Regulatory 
Guidance Letters and posted on this same Web site.

    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe 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. 
(Section 10)

    Note 1: As of the date of the promulgation of this NWP, only New 
Jersey and Michigan administer their own section 404 permit 
programs.

    Note 2: Those activities that do not involve an Indian Tribe or 
State section 404 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. 591) (see 33 CFR 322.4(b)).

    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, building pads, 
homes, house pads, parking areas, storage areas and other such 
structures. The structure itself may require a section 10 permit if 
located in navigable waters of the United States. (Section 404)
    26. [Reserved]
    27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. Activities in waters of the United States associated with 
the restoration, enhancement, and establishment of tidal and non-tidal 
wetlands and riparian areas and the restoration and enhancement of non-
tidal streams and other non-tidal open waters, provided those 
activities result in net increases in aquatic resource functions and 
services.
    To the extent that a Corps permit is required, activities 
authorized by this NWP include, but are not limited to:

[[Page 9194]]

The removal of accumulated sediments; the installation, removal, and 
maintenance of small water control structures, dikes, and berms; the 
installation of current deflectors; the enhancement, restoration, or 
establishment of riffle and pool stream structure; the placement of in-
stream habitat structures; modifications of the stream bed and/or banks 
to restore or establish stream meanders; the backfilling of artificial 
channels and drainage ditches; the removal of existing drainage 
structures; the construction of small nesting islands; the construction 
of open water areas; the construction of oyster habitat over 
unvegetated bottom in tidal waters; shellfish seeding; activities 
needed to reestablish vegetation, including plowing or discing for seed 
bed preparation and the planting of appropriate wetland species; 
mechanized land clearing to remove non-native invasive, exotic, or 
nuisance vegetation; the removal of small dams; and other related 
activities. Only native plant species should be planted at the site.
    This NWP authorizes the relocation of non-tidal waters, including 
non-tidal wetlands and streams, on the project site provided there are 
net increases in aquatic resource functions and services.
    Except for the relocation of non-tidal waters on the project site, 
this NWP does not authorize the conversion of a stream or natural 
wetlands to another aquatic habitat type (e.g., stream to wetland or 
vice versa) or uplands. This NWP does not authorize stream 
channelization. This NWP does not authorize the relocation of tidal 
waters or the conversion of tidal waters, including tidal wetlands, to 
other aquatic uses, such as the conversion of tidal wetlands into open 
water impoundments.
    Reversion. For enhancement, restoration, and establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding stream or wetland enhancement or restoration agreement, or 
a wetland establishment agreement, between the landowner and the U.S. 
Fish and Wildlife Service (FWS), the Natural Resources Conservation 
Service (NRCS), the Farm Service Agency (FSA), the National Marine 
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest 
Service (USFS), or their designated state cooperating agencies; (2) as 
voluntary wetland restoration, enhancement, and establishment actions 
documented by the NRCS or USDA Technical Service Provider pursuant to 
NRCS Field Office Technical Guide standards; or (3) on reclaimed 
surface coal mine lands, in accordance with a Surface Mining Control 
and Reclamation Act permit issued by the Office of Surface Mining 
Reclamation and Enforcement (OSMRE) or the applicable state agency, 
this NWP also authorizes any future discharge of dredged or fill 
material associated with the reversion of the area to its documented 
prior condition and use (i.e., prior to the restoration, enhancement, 
or establishment activities). The reversion must occur within five 
years after expiration of a limited term wetland restoration or 
establishment agreement or permit, and is authorized in these 
circumstances even if the discharge occurs after this NWP expires. The 
five-year reversion limit does not apply to agreements without time 
limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, 
USFS, or an appropriate state cooperating agency. This NWP also 
authorizes discharges of dredged or fill material in waters of the 
United States for the reversion of wetlands that were restored, 
enhanced, or established on prior-converted cropland or on uplands, in 
accordance with a binding agreement between the landowner and NRCS, 
FSA, FWS, or their designated state cooperating agencies (even though 
the restoration, enhancement, or establishment activity did not require 
a section 404 permit). The prior condition will be documented in the 
original agreement or permit, and the determination of return to prior 
conditions will be made by the Federal agency or appropriate state 
agency executing the agreement or permit. Before conducting any 
reversion activity the permittee or the appropriate Federal or state 
agency must notify the district engineer and include the documentation 
of the prior condition. Once an area has reverted to its prior physical 
condition, it will be subject to whatever the Corps Regulatory 
requirements are applicable to that type of land at the time. The 
requirement that the activity result in a net increase in aquatic 
resource functions and services does not apply to reversion activities 
meeting the above conditions. Except for the activities described 
above, this NWP does not authorize any future discharge of dredged or 
fill material associated with the reversion of the area to its prior 
condition. In such cases a separate permit would be required for any 
reversion.
    Reporting: For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding stream enhancement or restoration 
agreement or wetland enhancement, restoration, or establishment 
agreement, or a project description, including project plans and 
location map; (2) the NRCS or USDA Technical Service Provider 
documentation for the voluntary stream enhancement or restoration 
action or wetland restoration, enhancement, or establishment action; or 
(3) the SMCRA permit issued by OSMRE or the applicable state agency. 
These documents must be submitted to the district engineer at least 30 
days prior to commencing activities in waters of the United States 
authorized by this NWP.
    Notification. The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 30), except for the following activities:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding stream 
enhancement or restoration agreement or wetland enhancement, 
restoration, or establishment agreement between the landowner and the 
U.S. FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state 
cooperating agencies;
    (2) Voluntary stream or wetland restoration or enhancement action, 
or wetland establishment action, documented by the NRCS or USDA 
Technical Service Provider pursuant to NRCS Field Office Technical 
Guide standards; or
    (3) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSMRE or the applicable state agency.
    However, the permittee must submit a copy of the appropriate 
documentation. (Sections 10 and 404)

    Note: This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks and in-lieu fee projects. 
However, this NWP does not authorize the reversion of an area used 
for a compensatory mitigation project to its prior condition, since 
compensatory mitigation is generally intended to be permanent.

    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the United States is authorized by this NWP. (Section 10)
    29. Residential Developments. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction or expansion of a single residence, a multiple unit 
residential development, or a residential subdivision. This NWP 
authorizes the construction of building foundations and building pads 
and attendant

[[Page 9195]]

features that are necessary for the use of the residence or residential 
development. Attendant features may include but are not limited to 
roads, parking lots, garages, yards, utility lines, storm water 
management facilities, septic fields, and recreation facilities such as 
playgrounds, playing fields, and golf courses (provided the golf course 
is an integral part of the residential development).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Subdivisions: For residential subdivisions, the aggregate total 
loss of waters of United States authorized by this NWP cannot exceed 
\1/2\-acre. This includes any loss of waters of the United States 
associated with development of individual subdivision lots.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife 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, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, including 
streams to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, or similar features associated 
with the management areas. The activity must not result in a net loss 
of aquatic resource functions and services. This NWP does not authorize 
the conversion of wetlands to uplands, impoundments, or other open 
water bodies. (Section 404)

    Note: The repair, maintenance, or replacement of existing water 
control structures or the repair or maintenance of dikes may be 
authorized by NWP 3. Some such activities may qualify for an 
exemption under Section 404(f) of the Clean Water Act (see 33 CFR 
323.4).

    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, and channels that: (i) Were 
previously authorized by the Corps by individual permit, general 
permit, or 33 CFR 330.3, or did not require a permit at the time they 
were constructed, or (ii) were constructed by the Corps and transferred 
to a non-Federal sponsor for operation and maintenance. Activities 
authorized by this NWP are limited to those resulting from maintenance 
activities that are conducted within the ``maintenance baseline,'' as 
described in the definition below. Discharges of dredged or fill 
materials associated with maintenance activities in flood control 
facilities in any watercourse that have previously been determined to 
be within the maintenance baseline are authorized under this NWP. To 
the extent that a Corps permit is required, this NWP authorizes the 
removal of vegetation from levees associated with the flood control 
project. This NWP does not authorize the removal of sediment and 
associated vegetation from natural water courses except when these 
activities have been included in the maintenance baseline. All dredged 
material must be placed in an upland site or an authorized disposal 
site in waters of the United States, and proper siltation controls must 
be used.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
district engineer. The district engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels but which are part of the facility. The 
prospective permittee will provide documentation of the physical 
characteristics of the flood control facility (which will normally 
consist of as-built or approved drawings) and documentation of the 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices to ensure that the impacts to the aquatic 
environment are minimal, especially in maintenance areas where there 
are no constructed channels. (The Corps may request maintenance records 
in areas where there has not been recent maintenance.) Revocation or 
modification of the final determination of the maintenance baseline can 
only be done in accordance with 33 CFR 330.5. Except in emergencies as 
described below, this NWP cannot be used until the district engineer 
approves the maintenance baseline and determines the need for 
mitigation and any regional or activity-specific conditions. Once 
determined, the maintenance baseline will remain valid for any 
subsequent reissuance of this NWP. This NWP does not authorize 
maintenance of a flood control facility that has been abandoned. A 
flood control facility will be considered abandoned if it has operated 
at a significantly reduced capacity without needed maintenance being 
accomplished in a timely manner.
    Mitigation: The district engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental impacts are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the district engineer will not delay needed maintenance, 
provided the district engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline. In determining appropriate 
mitigation, the district engineer will give special consideration to 
natural water courses that have been included in the maintenance 
baseline and require compensatory mitigation and/or best management 
practices as appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been approved. Emergency situations 
are

[[Page 9196]]

those which would result in an unacceptable hazard to life, a 
significant loss of property, or an immediate, unforeseen, and 
significant economic hardship if action is not taken before a 
maintenance baseline can be approved. In such situations, the 
determination of mitigation requirements, if any, may be deferred until 
the emergency has been resolved. Once the emergency has ended, a 
maintenance baseline must be established expeditiously, and mitigation, 
including mitigation for maintenance conducted during the emergency, 
must be required as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer before any maintenance work is 
conducted (see general condition 30). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the dredged material 
disposal site. (Sections 10 and 404)
    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 written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the Clean Water Act 
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms 
of an EPA 309(a) order on consent resolving a violation of Section 404 
of the Clean Water Act, provided that:
    (a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
    (b) The settlement agreement provides for environmental benefits, 
to an equal or greater degree, than the environmental detriments caused 
by the unauthorized activity that is authorized by this NWP; and
    (c) The district engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP 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 Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    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. 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. Before reaching any 
settlement agreement, the Corps will ensure compliance with the 
provisions of 33 CFR part 326 and 33 CFR 330.6(d)(2) and (e). (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 that the associated primary activity is authorized by 
the Corps of Engineers or the U.S. Coast Guard. This NWP also 
authorizes temporary structures, work, and discharges, including 
cofferdams, necessary for construction activities not otherwise subject 
to the Corps or U.S. Coast Guard permit requirements. Appropriate 
measures must be taken to maintain near normal downstream flows and to 
minimize flooding. Fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. The use of 
dredged material may be allowed if the district engineer determines 
that it will not cause more than minimal adverse effects on aquatic 
resources. Following completion of construction, temporary fill must be 
entirely removed to upland areas, dredged material must be returned to 
its original location, and the affected areas must be restored to pre-
construction elevations. The affected areas must also be revegetated, 
as appropriate. This permit does not authorize the use of cofferdams to 
dewater wetlands or other aquatic areas to change their use. Structures 
left in place after construction is completed require a separate 
section 10 permit if located in navigable waters of the United States. 
(See 33 CFR part 322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 30). The pre-construction notification must 
include a restoration plan showing how all temporary fills and 
structures will be removed and the area restored to pre-project 
conditions. (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. 
The cumulative total acreage of disturbance per cranberry production 
operation, including but not limited to, filling, flooding, ditching, 
or clearing, must not exceed 10 acres of waters of the United States, 
including wetlands. The activity must 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer once during the period that this 
NWP is valid, and the NWP will then authorize discharges of dredge or 
fill material at an existing operation for the permit term, provided 
the 10-acre limit is not exceeded. (See general condition 30.) (Section 
404)
    35. Maintenance Dredging of Existing Basins. Excavation and removal 
of accumulated sediment for maintenance of existing marina basins, 
access channels to marinas or boat slips, and boat slips to previously 
authorized depths or controlling depths for ingress/egress, whichever 
is less, provided the dredged material is deposited at an upland site 
and proper siltation controls are used. (Section 10)
    36. Boat Ramps. Activities required for the construction of boat 
ramps, provided the activity meets all of the following criteria:
    (a) The discharge into waters of the United States does not exceed 
50 cubic yards of concrete, rock, crushed stone or gravel into forms, 
or in the form of pre-cast concrete planks or slabs, unless the 
district engineer waives the 50 cubic yard limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;

[[Page 9197]]

    (b) The boat ramp does not exceed 20 feet in width, unless the 
district engineer waives this criterion by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;
    (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.
    The use of unsuitable material that is structurally unstable is not 
authorized. If dredging in navigable waters of the United States is 
necessary to provide access to the boat ramp, the dredging may be 
authorized by another NWP, a regional general permit, or an individual 
permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge into waters of the United States exceeds 50 cubic 
yards, or (2) the boat ramp exceeds 20 feet in width. (See general 
condition 30.) (Sections 10 and 404)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624);
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 2509.13);
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3);
    (d) The Office of Surface Mining, or states with approved programs, 
for abandoned mine land reclamation activities under Title IV of the 
Surface Mining Control and Reclamation Act (30 CFR Subchapter R), where 
the activity does not involve coal extraction; or
    (e) The Farm Service Agency under its Emergency Conservation 
Program (7 CFR part 701).
    In general, the prospective permittee should wait until the 
district engineer issues an NWP verification or 45 calendar days have 
passed before proceeding with the watershed protection and 
rehabilitation activity. However, in cases where there is an 
unacceptable hazard to life or a significant loss of property or 
economic hardship will occur, the emergency watershed protection and 
rehabilitation activity may proceed immediately and the district 
engineer will consider the information in the pre-construction 
notification and any comments received as a result of agency 
coordination to decide whether the NWP 37 authorization should be 
modified, suspended, or revoked in accordance with the procedures at 33 
CFR 330.5.
    Notification: Except in cases where there is an unacceptable hazard 
to life or a significant loss of property or economic hardship will 
occur, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 30). (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. 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)
    Note: Activities undertaken entirely on a Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) site 
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.
    39. Commercial and Institutional Developments. Discharges of 
dredged or fill material into non-tidal waters of the United States for 
the construction or expansion of commercial and institutional building 
foundations and building pads and attendant features that are necessary 
for the use and maintenance of the structures. Attendant features may 
include, but are not limited to, roads, parking lots, garages, yards, 
utility lines, storm water management facilities, and recreation 
facilities such as playgrounds and playing fields. Examples of 
commercial developments include retail stores, industrial facilities, 
restaurants, business parks, and shopping centers. Examples of 
institutional developments include schools, fire stations, government 
office buildings, judicial buildings, public works buildings, 
libraries, hospitals, and places of worship. The construction of new 
golf courses, new ski areas, or oil and gas wells is not authorized by 
this NWP.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)
    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States for agricultural activities, 
including the construction of building pads for farm buildings. 
Authorized activities include the installation, placement, or 
construction of drainage tiles, ditches, or levees; mechanized land 
clearing; land leveling; the relocation of existing serviceable 
drainage ditches constructed in waters of the United States; and 
similar activities.
    This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams, 
provided the farm pond is used solely for agricultural purposes. This 
NWP does not authorize the construction of aquaculture ponds.
    This NWP also authorizes discharges of dredged or fill material 
into non-tidal waters of the United States to relocate existing 
serviceable drainage ditches constructed in non-tidal streams.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Section 404)

    Note: Some discharges for agricultural activities may qualify 
for an exemption under Section 404(f) of the Clean Water Act (see 33 
CFR 323.4). This NWP authorizes the construction of farm ponds that 
do not qualify for the Clean Water Act Section

[[Page 9198]]

404(f)(1)(C) exemption because of the recapture provision at Section 
404(f)(2).

    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of currently serviceable drainage ditches 
constructed in waters of the United States, for the purpose of 
improving water quality by regrading the drainage ditch with gentler 
slopes, which can reduce erosion, increase growth of vegetation, and 
increase uptake of nutrients and other substances by vegetation. The 
reshaping of the ditch cannot increase drainage capacity beyond the 
original as-built capacity nor can it expand the area drained by the 
ditch as originally constructed (i.e., the capacity of the ditch must 
be the same as originally constructed and it cannot drain additional 
wetlands or other waters of the United States). Compensatory mitigation 
is not required because the work is designed to improve water quality.
    This NWP does not authorize the relocation of drainage ditches 
constructed in waters of the United States; the location of the 
centerline of the reshaped drainage ditch must be approximately the 
same as the location of the centerline of the original drainage ditch. 
This NWP does not authorize stream channelization or stream relocation 
projects.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity, 
if more than 500 linear feet of drainage ditch will be reshaped. (See 
general condition 30.) (Section 404)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States for the construction or 
expansion of recreational facilities. Examples of recreational 
facilities that may be authorized by this NWP include playing fields 
(e.g., football fields, baseball fields), basketball courts, tennis 
courts, hiking trails, bike paths, golf courses, ski areas, horse 
paths, nature centers, and campgrounds (excluding recreational vehicle 
parks). This NWP also authorizes the construction or expansion of small 
support facilities, such as maintenance and storage buildings and 
stables that are directly related to the recreational activity, but it 
does not authorize the construction of hotels, restaurants, racetracks, 
stadiums, arenas, or similar facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Section 404)
    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction and maintenance of stormwater management facilities, 
including the excavation of stormwater ponds/facilities, detention 
basins, and retention basins; the installation and maintenance of water 
control structures, outfall structures and emergency spillways; low 
impact development stormwater features; and the maintenance dredging of 
existing stormwater management ponds/facilities and detention and 
retention basins.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize discharges of dredged or fill material for the 
construction of new stormwater management facilities in perennial 
streams.
    Notification: For the construction of new stormwater management 
facilities, or the expansion of existing stormwater management 
facilities, the permittee must submit a pre-construction notification 
to the district engineer prior to commencing the activity. (See general 
condition 30.) Maintenance activities do not require pre-construction 
notification if they are limited to restoring the original design 
capacities of the stormwater management facility. (Section 404)
    44. Mining Activities. Discharges of dredged or fill material into 
non-tidal waters of the United States for mining activities, except for 
coal mining activities. The discharge must not cause the loss of 
greater than \1/2\-acre of non-tidal waters of the United States, 
including the loss of no more than 300 linear feet of stream bed, 
unless for intermittent and ephemeral stream beds the district engineer 
waives the 300 linear foot limit by making a written determination 
concluding that the discharge will result in minimal adverse effects. 
This NWP does not authorize discharges into non-tidal wetlands adjacent 
to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) If reclamation is required by other 
statutes, then a copy of the reclamation plan must be submitted with 
the pre-construction notification. (Sections 10 and 404)
    45. Repair of Uplands Damaged by Discrete Events. This NWP 
authorizes discharges of dredged or fill material, including dredging 
or excavation, into all waters of the United States for activities 
associated with the restoration of upland areas damaged by storms, 
floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. The district engineer retains the right to determine the 
extent of the pre-existing conditions and the extent of any restoration 
work authorized by this NWP. The work must commence, or be under 
contract to commence, within two years of the date of damage, unless 
this condition is waived in writing by the district engineer. This NWP 
cannot be used to reclaim lands lost to normal erosion processes over 
an extended period.
    This NWP does not authorize beach restoration.
    Minor dredging is limited to the amount necessary to restore the 
damaged upland area and should not significantly alter the pre-existing 
bottom contours of the waterbody.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer (see general condition 30) within 
12-months of the date of the damage. The pre-construction notification 
should include documentation, such as a recent topographic survey or 
photographs, to justify the extent of the proposed restoration. 
(Sections 10 and 404)

    Note:  The uplands themselves that are lost as a result of a 
storm, flood, or other discrete event can be replaced without a 
section 404 permit, if the uplands are restored to the ordinary high 
water mark (in non-tidal waters) or high tide line (in tidal 
waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of 
dredged or fill

[[Page 9199]]

material into waters of the United States associated with the 
restoration of uplands.

    46. Discharges in Ditches. Discharges of dredged or fill material 
into non-tidal ditches that are: (1) Constructed in uplands, (2) 
receive water from an area determined to be a water of the United 
States prior to the construction of the ditch, (3) divert water to an 
area determined to be a water of the United States prior to the 
construction of the ditch, and (4) are determined to be waters of the 
United States. The discharge must not cause the loss of greater than 
one acre of waters of the United States.
    This NWP does not authorize discharges of dredged or fill material 
into ditches constructed in streams or other waters of the United 
States, or in streams that have been relocated in uplands. This NWP 
does not authorize discharges of dredged or fill material that increase 
the capacity of the ditch and drain those areas determined to be waters 
of the United States prior to construction of the ditch.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Section 404)
    47. [Reserved]
    48. Existing Commercial Shellfish Aquaculture Activities. 
Discharges of dredged or fill material in waters of the United States 
or structures or work in navigable waters of the United States 
necessary for the continued operation and/or expansion of existing 
commercial shellfish aquaculture operations, including the installation 
of buoys, floats, racks, trays, nets, lines, tubes, containers, and 
other structures. This NWP also authorizes discharges of dredged or 
fill material necessary for shellfish seeding, rearing, cultivating, 
transplanting, and harvesting activities. Rafts and other floating 
structures must be securely anchored and clearly marked. This NWP does 
not authorize:
    (a) The cultivation of species not previously cultivated in the 
waterbody or of an aquatic nuisance species as defined in the Non-
Indigenous Aquatic Nuisance Prevention and Control Act of 1990; or,
    (b) Attendant features such as docks, piers, boat ramps, 
stockpiles, staging areas, or the deposition of shell material back 
into waters of the United States as waste.
    This NWP does not authorize new commercial shellfish aquaculture 
operations, except for expansions of existing operations.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if: (1) The project area is 
greater than 100 acres; or (2) there is any reconfiguration of the 
aquaculture activity, such as relocating existing operations into 
portions of the project area not previously used for aquaculture 
activities; or (3) there is a change in culture methods (e.g., from 
bottom culture to off-bottom culture); or (4) dredge harvesting, 
tilling, or harrowing is conducted in areas inhabited by submerged 
aquatic vegetation; or, (5) there is an expansion to the project area. 
(See general condition 30.)
    In addition to the information required by paragraph (b) of general 
condition 30, the pre-construction notification must also include the 
following information: (a) The size of the project area, plus any 
proposed expansion (in acres); (b) the corner latitude and longitude 
coordinates of the project area and the expansion area; (c) a brief 
description of the culture and harvest method(s), including plans for 
rotating production within a project area; (d) the name(s) of the 
cultivated species; (e) whether canopy predator nets are being used; 
and, (f) a description of the composition of the substrate material and 
vegetation. (Sections 10 and 404)

    Note 1:  The permittee should notify the applicable U.S. Coast 
Guard office regarding the project.

    Note 2:  The Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 defines ``aquatic nuisance species'' as ``a 
nonindigenous species that threatens the diversity or abundance of 
native species or the ecological stability of infested waters, or 
commercial, agricultural, aquacultural, or recreational activities 
dependent on such waters.''

    49. Coal Remining Activities. Discharges of dredged or fill 
material into non-tidal waters of the United States associated with the 
remining and reclamation of lands that were previously mined for coal. 
The activities must already be authorized, or they must currently be in 
process as part of an integrated permit processing procedure, by the 
Department of Interior (DOI) Office of Surface Mining Reclamation and 
Enforcement (OSMRE), or by states with approved programs under Title IV 
or Title V of the Surface Mining Control and Reclamation Act (SMCRA) of 
1977. Areas previously mined include reclaimed mine sites, abandoned 
mine land areas, or lands under bond forfeiture contracts.
    As part of the project, the permittee may conduct new coal mining 
activities in conjunction with the remining activities when he or she 
clearly demonstrates to the district engineer that the overall mining 
plan will result in a net increase in aquatic resource functions. The 
Corps will consider the SMCRA agency's decision regarding the amount of 
currently undisturbed adjacent lands needed to facilitate the remining 
and reclamation of the previously mined area. The total area disturbed 
by new mining must not exceed 40 percent of the total acreage covered 
by both the remined area and the additional area necessary to carry out 
the reclamation of the previously mined area.
    Notification: The permittee must submit a pre-construction 
notification and a document describing how the overall mining plan will 
result in a net increase in aquatic resource functions to the district 
engineer and receive written authorization prior to commencing the 
activity. (See general condition 30.) (Sections 10 and 404)
    50. Underground Coal Mining Activities. Discharges of dredged or 
fill material into non-tidal waters of the United States associated 
with underground coal mining and reclamation operations provided the 
activities are authorized, or are currently being processed as part of 
an integrated permit processing procedure, by the Department of 
Interior (DOI), Office of Surface Mining Reclamation and Enforcement 
(OSMRE), or by states with approved programs under Title V of the 
Surface Mining Control and Reclamation Act of 1977.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize coal preparation and processing activities outside 
of the mine site.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 30.) If 
reclamation is required by other statutes, then a copy of the 
reclamation plan must be submitted with the pre-construction 
notification. (Sections 10 and 404)

    Note: Coal preparation and processing activities outside of the 
mine site may be authorized by NWP 21.

[[Page 9200]]

    A. Land-Based Renewable Energy Generation Facilities. Discharges of 
dredged or fill material into non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, for the 
construction, expansion, or modification of land-based renewable energy 
production facilities. Such facilities include infrastructure to 
collect solar (concentrating solar power and photovoltaic), wind, 
biomass, or geothermal energy, as well as utility lines to transfer the 
energy to land-based distribution facilities. Attendant features may 
include, but are not limited to roads, parking lots, utility lines, and 
storm water management facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This permit does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)
    B. Water-Based Renewable Energy Generation Pilot Projects. 
Structures and work in navigable waters of the United States and 
discharges of dredged or fill material into waters of the United States 
for the construction, expansion, or modification of water-based wind or 
hydrokinetic renewable energy generation pilot projects and their 
attendant features. Attendant features may include, but are not limited 
to, land-based distribution facilities, roads, parking lots, stormwater 
management facilities, utility lines, including utility lines to 
transfer the energy to land-based distribution facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
waters of the United States, including the loss of no more than 300 
linear feet of stream bed, unless for intermittent and ephemeral stream 
beds the district engineer waives the 300 linear foot limit by making a 
written determination concluding that the discharge will result in 
minimal adverse effects.
    For each single and complete project, no more than 10 generation 
units (e.g., wind turbines) are authorized.
    This NWP does not authorize activities in coral reefs.
    Structures in an anchorage area established by the U.S. Coast Guard 
must comply with the requirements in 33 CFR part 322.5(l)(2).
    Structures may not be placed in established danger zones or 
restricted areas as designated in 33 CFR part 334, shipping safety 
fairways or traffic separation schemes established by the U.S. Coast 
Guard (see 33 CFR part 322.5(l)(1)), or EPA or Corps designated open 
water dredged material disposal areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 30.) (Sections 10 and 404)

    Note 1:  An activity that is located on an existing locally or 
federally maintained U.S. Army Corps of Engineers project requires 
separate approval from the Chief of Engineers under 33 U.S.C. 408.

    Note 2:  Copies of the NWP verification will be sent by the 
Corps to the National Oceanic and Atmospheric Administration (NOAA), 
National Ocean Service (NOS), for charting the project and 
associated utility line(s) to protect navigation.

C. Nationwide Permit General Conditions

    Note:  To qualify for NWP authorization, the prospective 
permittee must comply with the following general conditions, as 
appropriate, in addition to any regional or case-specific conditions 
imposed by the division engineer or district engineer. Prospective 
permittees should contact the appropriate Corps district office to 
determine if regional conditions have been imposed on an NWP. 
Prospective permittees should also contact the appropriate Corps 
district office to determine the status of Clean Water Act Section 
401 water quality certification and/or Coastal Zone Management Act 
consistency for an NWP. Every person who may wish to obtain permit 
authorization under one or more NWPs, or who is currently relying on 
an existing or prior permit authorization under one or more NWPs, 
has been and is on notice that all of the provisions of 33 CFR 330.1 
through 330.6 apply to every NWP authorization. Note especially 33 
CFR 330.5 relating to the modification, suspension, or revocation of 
any NWP authorization.

    1. Navigation. (a) No activity may cause more than a minimal 
adverse effect on navigation.
    (b) Any safety lights and signals prescribed by the U.S. Coast 
Guard, through regulations or otherwise, must be installed and 
maintained at the permittee's expense on authorized facilities in 
navigable waters of the United States.
    (c) The permittee understands and agrees that, if future operations 
by the United States require the removal, relocation, or other 
alteration, of the structure or work herein authorized, or if, in the 
opinion of the Secretary of the Army or his authorized representative, 
said structure or work shall cause unreasonable obstruction to the free 
navigation of the navigable waters, the permittee will be required, 
upon due notice from the Corps of Engineers, to remove, relocate, or 
alter the structural work or obstructions caused thereby, without 
expense to the United States. No claim shall be made against the United 
States on account of any such removal or alteration.
    2. Aquatic Life Movements. No activity may substantially disrupt 
the necessary life cycle movements of those species of aquatic life 
indigenous to the waterbody, including those species that normally 
migrate through the area, unless the activity's primary purpose is to 
impound water. Culverts placed in streams must be installed to maintain 
low flow conditions. Bottomless culverts must be used where 
practicable. For an activity where it is not practicable to use a 
bottomless culvert, such as circumstances where sub-grade instability 
would make it unsafe to use a bottomless culvert, the bottom of the 
culvert must be below the grade of the stream bed unless the stream bed 
consists of bedrock or boulders.
    3. Spawning Areas. Activities in spawning areas during spawning 
seasons must be avoided to the maximum extent practicable. Activities 
that result in the physical destruction (e.g., through excavation, 
fill, or downstream smothering by substantial turbidity) of an 
important spawning area are not authorized.
    4. Migratory Bird Breeding Areas. Activities in waters of the 
United States that serve as breeding areas for migratory birds must be 
avoided to the maximum extent practicable.
    5. Shellfish Beds. No activity may occur in areas of concentrated 
shellfish populations, unless the activity is directly related to a 
shellfish harvesting activity authorized by NWPs 4 and 48.
    6. Suitable Material. No activity may use unsuitable material 
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for 
construction or discharged must be free from toxic pollutants in toxic 
amounts (see Section 307 of the Clean Water Act).
    7. Water Supply Intakes. No activity may occur in the proximity of 
a public water supply intake, except where the activity is for the 
repair or improvement of public water supply intake structures or 
adjacent bank stabilization.
    8. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to 
accelerating the passage of water, and/or restricting

[[Page 9201]]

its flow must be minimized to the maximum extent practicable.
    9. Management of Water Flows. To the maximum extent practicable, 
the pre-construction course, condition, capacity, and location of open 
waters must be maintained for each activity, including stream 
channelization and storm water management activities, except as 
provided below. The activity must be constructed to withstand expected 
high flows. The activity must not restrict or impede the passage of 
normal or high flows, unless the primary purpose of the activity is to 
impound water or manage high flows. The activity may alter the pre-
construction course, condition, capacity, and location of open waters 
if it benefits the aquatic environment (e.g., stream restoration or 
relocation activities).
    10. Fills Within 100-Year Floodplains. The activity must comply 
with applicable FEMA-approved state or local floodplain management 
requirements.
    11. Equipment. Heavy equipment working in wetlands or mudflats must 
be placed on mats, or other measures must be taken to minimize soil 
disturbance.
    12. Soil Erosion and Sediment Controls. Appropriate soil erosion 
and sediment controls must be used and maintained in effective 
operating condition during construction, and all exposed soil and other 
fills, as well as any work below the ordinary high water mark or high 
tide line, must be permanently stabilized at the earliest practicable 
date. Permittees are encouraged to perform work within waters of the 
United States during periods of low-flow or no-flow.
    13. Removal of Temporary Fills. Temporary fills must be removed in 
their entirety and the affected areas returned to pre-construction 
elevations. The affected areas must be revegetated, as appropriate.
    14. Discovery of Previously Unknown Remains and Artifacts. If you 
discover any previously unknown historic, cultural or archeological 
remains and artifacts while accomplishing the activity authorized by 
this permit, you must immediately notify this office of what you have 
found, and to the maximum extent practicable, stop activities that 
would adversely affect those remains and artifacts until the required 
coordination has been completed. We will initiate the Federal, Tribal 
and state coordination required to determine if the items or remains 
warrant a recovery effort or if the site is eligible for listing in the 
National Register of Historic Places.
    15. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety.
    16. Single and Complete Project. The activity must be a single and 
complete project. The same NWP cannot be used more than once for the 
same single and complete project.
    17. 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 affect 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 responsible for the 
designated Wild and Scenic River or study river (e.g., National Park 
Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and 
Wildlife Service).
    18. 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.
    19. Endangered Species. (a) No activity is authorized under any NWP 
which is likely to directly or indirectly 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 (ESA), or which will directly or indirectly destroy or 
adversely modify the critical habitat of such species. No activity is 
authorized under any NWP which ``may affect'' a listed species or 
critical habitat, unless Section 7 consultation addressing the effects 
of the proposed activity has been completed.
    (b) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA. Federal permittees must 
provide the district engineer with the appropriate documentation to 
demonstrate compliance with those requirements.
    (c) Non-Federal permittees shall notify the district engineer if 
any listed species or designated critical habitat might be affected or 
is in the vicinity of the project, or if the project is located in 
designated critical habitat, and shall not begin work on the activity 
until notified by the district engineer that the requirements of the 
ESA have been satisfied and that the activity is authorized. For 
activities that might affect Federally-listed endangered or threatened 
species or designated critical habitat, the pre-construction 
notification must include the name(s) of the endangered or threatened 
species that may be affected by the proposed work or that utilize the 
designated critical habitat that may be affected by the proposed work. 
The district engineer will determine whether the proposed activity 
``may affect'' or will have ``no effect'' to listed species and 
designated critical habitat and will notify the non-Federal applicant 
of the Corps' determination within 45 days of receipt of a complete 
pre-construction notification. In cases where the non-Federal applicant 
has identified listed species or critical habitat that might be 
affected or is in the vicinity of the project, and has so notified the 
Corps, the applicant shall not begin work until the Corps has provided 
notification the proposed activities will have ``no effect'' on listed 
species or critical habitat, or until Section 7 consultation has been 
completed.
    (d) As a result of formal or informal consultation with the FWS or 
NMFS the district engineer may add species-specific regional endangered 
species conditions to the NWPs.
    (e) Authorization of an activity by a NWP does not authorize the 
``take'' of a threatened or endangered species as defined under the 
ESA. In the absence of separate authorization (e.g., an ESA Section 10 
Permit, a Biological Opinion with ``incidental take'' provisions, etc.) 
from the U.S. FWS or the NMFS, The Endangered Species Act prohibits any 
person subject to the jurisdiction of the United States to take a 
listed species, where ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. The word ``harm'' in the definition of ``take'' 
means an act which actually kills or injures wildlife. Such an act may 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding or sheltering.
    (f) Information on the location of threatened and endangered 
species and their critical habitat can be obtained directly from the 
offices of the U.S. FWS and NMFS or their world wide Web pages at 
http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.noaa.gov/fisheries.html respectively.
    20. Historic Properties. (a) In cases where the district engineer 
determines that the activity may affect properties listed, or eligible 
for listing, in the

[[Page 9202]]

National Register of Historic Places, the activity is not authorized, 
until the requirements of Section 106 of the National Historic 
Preservation Act (NHPA) have been satisfied.
    (b) Federal permittees should follow their own procedures for 
complying with the requirements of Section 106 of the National Historic 
Preservation Act. Federal permittees must provide the district engineer 
with the appropriate documentation to demonstrate compliance with those 
requirements.
    (c) Non-Federal permittees must submit a pre-construction 
notification to the district engineer if the authorized activity may 
have the potential to cause effects to any historic properties listed, 
determined to be eligible for listing on, or potentially eligible for 
listing on the National Register of Historic Places, including 
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties may be 
affected by the proposed work or include a vicinity map indicating the 
location of the historic properties or the potential for the presence 
of historic properties. Assistance regarding information on the 
location of or potential for the presence of historic resources can be 
sought from the State Historic Preservation Officer or Tribal Historic 
Preservation Officer, as appropriate, and the National Register of 
Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction 
notifications, district engineers will comply with the current 
procedures for addressing the requirements of Section 106 of the 
National Historic Preservation Act. The district engineer shall make a 
reasonable and good faith effort to carry out appropriate 
identification efforts, which may include background research, 
consultation, oral history interviews, sample field investigation, and 
field survey. Based on the information submitted and these efforts, the 
district engineer shall determine whether the proposed activity has the 
potential to cause an effect on the historic properties. Where the non-
Federal applicant has identified historic properties on which the 
activity may have the potential to cause effects and so notified the 
Corps, the non-Federal applicant shall not begin the activity until 
notified by the district engineer either that the activity has no 
potential to cause effects or that consultation under Section 106 of 
the NHPA has been completed.
    (d) The district engineer will notify the prospective permittee 
within 45 days of receipt of a complete pre-construction notification 
whether NHPA Section 106 consultation is required. Section 106 
consultation is not required when the Corps determines that the 
activity does not have the potential to cause effects on historic 
properties (see 36 CFR 800.3(a)). If NHPA section 106 consultation is 
required and will occur, the district engineer will notify the non-
Federal applicant that he or she cannot begin work until Section 106 
consultation is completed.
    (e) Prospective permittees should be aware that section 110k of the 
NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or 
other assistance to an applicant who, with intent to avoid the 
requirements of Section 106 of the NHPA, has intentionally 
significantly adversely affected a historic property to which the 
permit would relate, or having legal power to prevent it, allowed such 
significant adverse effect to occur, unless the Corps, after 
consultation with the Advisory Council on Historic Preservation (ACHP), 
determines that circumstances justify granting such assistance despite 
the adverse effect created or permitted by the applicant. If 
circumstances justify granting the assistance, the Corps is required to 
notify the ACHP and provide documentation specifying the circumstances, 
the degree of damage to the integrity of any historic properties 
affected, and proposed mitigation. This documentation must include any 
views obtained from the applicant, SHPO/THPO, appropriate Indian tribes 
if the undertaking occurs on or affects historic properties on tribal 
lands or affects properties of interest to those tribes, and other 
parties known to have a legitimate interest in the impacts to the 
permitted activity on historic properties.
    21. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-managed marine sanctuaries and marine monuments, National 
Estuarine Research Reserves, and state designated outstanding national 
resource waters. The district engineer may designate, after notice and 
opportunity for public comment, additional waters officially designated 
by a state as having particular environmental or ecological 
significance, such as state natural heritage sites. The district 
engineer may also designate additional critical resource waters after 
notice and opportunity for public comment.
    (a) Discharges of dredged or fill material into waters of the 
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 
35, 39, 40, 42, 43, 44, 49, 50, A, and B for any activity within, or 
directly affecting, critical resource waters, including wetlands 
adjacent to such waters.
    (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 
34, 36, 37, and 38, notification is required in accordance with general 
condition 30, for any activity proposed in the designated critical 
resource waters including wetlands adjacent to those waters. The 
district engineer may authorize activities under these NWPs only after 
it is determined that the impacts to the critical resource waters will 
be no more than minimal.
    22. Mitigation. The district engineer will consider the following 
factors when determining appropriate and practicable mitigation 
necessary to ensure that adverse effects on the aquatic environment are 
minimal:
    (a) The activity must be designed and constructed to avoid and 
minimize adverse effects, both temporary and permanent, to waters of 
the United States to the maximum extent practicable at the project site 
(i.e., on site).
    (b) Mitigation in all its forms (avoiding, minimizing, rectifying, 
reducing, or compensating) will be required to the extent necessary to 
ensure that the adverse effects to the aquatic environment are minimal.
    (c) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all wetland losses that exceed \1/10\-acre and require 
pre-construction notification, unless the district engineer determines 
in writing that some other form of mitigation would be more 
environmentally appropriate and provides a project-specific waiver of 
this requirement. For wetland losses of \1/10\-acre or less that 
require pre-construction notification, the district engineer may 
determine on a case-by-case basis that compensatory mitigation is 
required to ensure that the activity results in minimal adverse effects 
on the aquatic environment. Since the likelihood of success is greater 
and the impacts to potentially valuable uplands are reduced, wetland 
restoration should be the first compensatory mitigation option 
considered.
    (d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require 
compensatory mitigation, such as stream restoration, to ensure that the 
activity results in minimal adverse effects on the aquatic environment.
    (e) Compensatory mitigation will not be used to increase the 
acreage losses allowed by the acreage limits of the NWPs. For example, 
if an NWP has an acreage limit of \1/2\-acre, it cannot be used to 
authorize any project resulting in the loss of greater than \1/2\-acre 
of waters of the United States, even if

[[Page 9203]]

compensatory mitigation is provided that replaces or restores some of 
the lost waters. However, compensatory mitigation can and should be 
used, as necessary, to ensure that a project already meeting the 
established acreage limits also satisfies the minimal impact 
requirement associated with the NWPs.
    (f) Compensatory mitigation plans for projects in or near streams 
or other open waters will normally include a requirement for the 
establishment, maintenance, and legal protection (e.g., conservation 
easements) of riparian areas next to open waters. In some cases, 
riparian areas may be the only compensatory mitigation required. 
Riparian areas should consist of native species. The width of the 
required riparian area will address documented water quality or aquatic 
habitat loss concerns. Normally, the riparian area will be 25 to 50 
feet wide on each side of the stream, but the district engineer may 
require slightly wider riparian areas to address documented water 
quality or habitat loss concerns. Where both wetlands and open waters 
exist on the project site, the district engineer will determine the 
appropriate compensatory mitigation (e.g., riparian areas and/or 
wetlands compensation) based on what is best for the aquatic 
environment on a watershed basis. In cases where riparian areas are 
determined to be the most appropriate form of compensatory mitigation, 
the district engineer may waive or reduce the requirement to provide 
wetland compensatory mitigation for wetland losses.
    (g) Permittees may propose the use of mitigation banks, in-lieu fee 
programs, or separate permittee-responsible mitigation. For activities 
resulting in the loss of marine or estuarine resources, permittee-
responsible compensatory mitigation may be environmentally preferable 
if there are no mitigation banks or in-lieu fee programs in the area 
that have marine or estuarine credits available for sale or transfer to 
the permittee. For permittee-responsible mitigation, the special 
conditions of the NWP verification must clearly indicate the party or 
parties responsible for the implementation, performance, and long-term 
management of the compensatory mitigation project.
    (h) Where certain functions and services of waters of the United 
States are permanently adversely affected, such as the conversion of a 
forested or scrub-shrub wetland to a herbaceous wetland in a 
permanently maintained utility line right-of-way, mitigation may be 
required to reduce the adverse effects of the project to the minimal 
level.
    23. Safety of Impoundment Structures. To ensure that all 
impoundment structures are safely designed, the district engineer may 
require non-Federal applicants to demonstrate that the structures 
comply with established state dam safety criteria or have been designed 
by qualified persons. The district engineer may also require 
documentation that the design has been independently reviewed by 
similarly qualified persons, and appropriate modifications made to 
ensure safety.
    24. Water Quality. Where States and authorized Tribes, or EPA where 
applicable, have not previously certified compliance of an NWP with CWA 
Section 401, individual 401 Water Quality Certification must be 
obtained or waived (see 33 CFR 330.4(c)). The district engineer or 
State or Tribe may require additional water quality management measures 
to ensure that the authorized activity does not result in more than 
minimal degradation of water quality.
    25. Coastal Zone Management. In coastal states where an NWP has not 
previously received a state coastal zone management consistency 
concurrence, an individual state coastal zone management consistency 
concurrence must be obtained, or a presumption of concurrence must 
occur (see 33 CFR 330.4(d)). The district engineer or a State may 
require additional measures to ensure that the authorized activity is 
consistent with state coastal zone management requirements.
    26. Regional and Case-By-Case Conditions. The activity must comply 
with any regional conditions that may have been added by the Division 
Engineer (see 33 CFR 330.4(e)) and with any case specific conditions 
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its 
section 401 Water Quality Certification, or by the state in its Coastal 
Zone Management Act consistency determination.
    27. Use of Multiple Nationwide Permits. The use of more than one 
NWP for a single and complete project is prohibited, except when the 
acreage loss of waters of the United States authorized by the NWPs does 
not exceed the acreage limit of the NWP with the highest specified 
acreage limit. For example, if a road crossing over tidal waters is 
constructed under NWP 14, with associated bank stabilization authorized 
by NWP 13, the maximum acreage loss of waters of the United States for 
the total project cannot exceed \1/3\-acre.
    28. Transfer of Nationwide Permit Verifications. If the permittee 
sells the property associated with a nationwide permit verification, 
the permittee may transfer the nationwide permit verification to the 
new owner by submitting a letter to the appropriate Corps district 
office to validate the transfer. A copy of the nationwide permit 
verification must be attached to the letter, and the letter must 
contain the following statement and signature:

``When the structures or work authorized by this nationwide permit are 
still in existence at the time the property is transferred, the terms 
and conditions of this nationwide permit, including any special 
conditions, will continue to be binding on the new owner(s) of the 
property. To validate the transfer of this nationwide permit and the 
associated liabilities associated with compliance with its terms and 
conditions, have the transferee sign and date below.''

-----------------------------------------------------------------------
(Transferee)

-----------------------------------------------------------------------
(Date)

    29. Compliance Certification. Each permittee who receives an NWP 
verification letter from the Corps must provide a signed certification 
documenting completion of the authorized activity and any required 
compensatory mitigation. The Corps will provide the permittee the 
certification document with the NWP verification letter. The 
certification document will include:
    (a) A statement that the authorized work was done in accordance 
with the NWP authorization, including any general or specific 
conditions;
    (b) A statement that any required compensatory mitigation was 
completed in accordance with the permit conditions; and
    (c) The signature of the permittee certifying the completion of the 
work and mitigation.
    30. Pre-Construction Notification. (a) Timing. Where required by 
the terms of the NWP, the prospective permittee must notify the 
district engineer by submitting a pre-construction notification (PCN) 
as early as possible. The district engineer must determine if the PCN 
is complete within 30 calendar days of the date of receipt and, as a 
general rule, will request additional information necessary to make the 
PCN complete only once. However, if the prospective permittee does not 
provide all of the requested information, then the district engineer 
will notify the prospective permittee that the PCN is still incomplete 
and the PCN review process will not commence until all of the requested 
information has been received by the district engineer. The

[[Page 9204]]

prospective permittee shall not begin the activity until either:
    (1) He or she is notified in writing 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) 45 calendar days have passed from the district engineer's 
receipt of the complete PCN and the prospective permittee has not 
received written notice from the district or division engineer. 
However, if the permittee was required to notify the Corps pursuant to 
general condition 19 that listed species or critical habitat might be 
affected or in the vicinity of the project, or to notify the Corps 
pursuant to general condition 20 that the activity may have the 
potential to cause effects to historic properties, the permittee cannot 
begin the activity until receiving written notification from the Corps 
that there is ``no effect'' on listed species or ``no potential to 
cause effects'' on historic properties, or that any consultation 
required under Section 7 of the Endangered Species Act (see 33 CFR 
330.4(f)) and/or Section 106 of the National Historic Preservation (see 
33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 
21, 49, or 50 until the permittee has received written approval from 
the Corps. If the proposed activity requires a written waiver to exceed 
specified limits of an NWP, the permittee cannot begin the activity 
until the district engineer issues the waiver. If the district or 
division engineer notifies the permittee in writing that an individual 
permit is required within 45 calendar days of receipt of a complete 
PCN, the permittee cannot begin the activity until an individual permit 
has been obtained. 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 Pre-Construction Notification: The PCN must be in 
writing and include the following information:
    (1) Name, address and telephone numbers of the prospective 
permittee;
    (2) Location of the proposed project;
    (3) A 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. The description should be 
sufficiently detailed to allow the district engineer to determine that 
the adverse effects of the project will be minimal and to determine the 
need for compensatory mitigation. Sketches should be provided when 
necessary to show that the activity complies with the terms of the NWP. 
(Sketches usually clarify the project and when provided results in a 
quicker decision.);
    (4) The PCN must include a delineation of special aquatic sites and 
other waters of the United States on the project site. Wetland 
delineations must be prepared in accordance with the current method 
required by the Corps. The permittee may ask the Corps to delineate the 
special aquatic sites and other waters of the United States, but there 
may be a delay if the Corps does the delineation, especially if the 
project site is large or contains many waters of the United States. 
Furthermore, the 45-day period will not start until the delineation has 
been submitted to or completed by the Corps, as appropriate;
    (5) If the proposed activity will result in the loss of greater 
than \1/10\-acre of wetlands and a PCN is required, the prospective 
permittee must submit a statement describing how the mitigation 
requirement will be satisfied. As an alternative, the prospective 
permittee may submit a conceptual or detailed mitigation plan.
    (6) If any listed species or designated critical habitat might be 
affected or is in the vicinity of the project, or if the project is 
located in designated critical habitat, for non-Federal applicants the 
PCN must include the name(s) of those endangered or threatened species 
that might be affected by the proposed work or utilize the designated 
critical habitat that may be affected by the proposed work. Federal 
applicants must provide documentation demonstrating compliance with the 
Endangered Species Act; and
    (7) For an activity that may affect a historic property listed on, 
determined to be eligible for listing on, or potentially eligible for 
listing on, the National Register of Historic Places, for non-Federal 
applicants the PCN must state which historic property may be affected 
by the proposed work or include a vicinity map indicating the location 
of the historic property. Federal applicants must provide documentation 
demonstrating compliance with Section 106 of the National Historic 
Preservation Act.
    (c) Form of Pre-Construction Notification: The standard individual 
permit application form (Form ENG 4345) may be used, but the completed 
application form must clearly indicate that it is a PCN and must 
include all of the information required in paragraphs (b)(1) through 
(7) of this general condition. A letter containing the required 
information may also be used.
    (d) Agency Coordination: (1) 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.
    (2) For all NWP activities that result in the loss of greater than 
\1/2\-acre of waters of the United States, NWP 21, 29, 39, 40, 42, 43, 
44, 50, A, and B activities that will result in the loss of greater 
than 1,000 linear feet of intermittent and ephemeral stream bed, and 
all NWP 48 activities requiring pre-construction notification, the 
district engineer will immediately provide (e.g., via facsimile 
transmission, overnight mail, or other expeditious manner) a copy of 
the PCN to the appropriate Federal or state offices (U.S. FWS, state 
natural resource or water quality agency, EPA, State Historic 
Preservation Officer (SHPO) or Tribal Historic Preservation Office 
(THPO), and, if appropriate, the NMFS). With the exception of NWP 37, 
these agencies will then have 10 calendar days from the date the 
material is transmitted to telephone or fax the district engineer 
notice that they intend to provide substantive, site-specific comments. 
If so contacted by an agency, the district engineer will wait an 
additional 15 calendar days before making a decision on the pre-
construction notification. The district engineer will fully consider 
agency comments received within the specified time frame, but will 
provide no response to the resource agency, except as provided below. 
The district engineer will indicate in the administrative record 
associated with each pre-construction notification that the resource 
agencies' concerns were considered. For NWP 37, the emergency watershed 
protection and rehabilitation activity may proceed immediately in cases 
where there is an unacceptable hazard to life or a significant loss of 
property or economic hardship will occur. The district engineer will 
consider any comments received to decide whether the NWP 37 
authorization should be modified, suspended, or revoked in accordance 
with the procedures at 33 CFR 330.5.
    (3) In cases where the prospective permittee is not a Federal 
agency, the district engineer will provide a response to NMFS within 30 
calendar days of receipt of any Essential Fish Habitat conservation 
recommendations, as required by Section 305(b)(4)(B) of the

[[Page 9205]]

Magnuson-Stevens Fishery Conservation and Management Act.
    (4) Applicants are encouraged to provide the Corps multiple copies 
of pre-construction notifications to expedite agency coordination.
    (e) District Engineer's Decision: (1) In reviewing the PCN for the 
proposed activity, the district engineer will determine whether the 
activity authorized by the NWP will result in more than minimal 
individual or cumulative adverse environmental effects or may be 
contrary to the public interest. If an applicant requests a waiver of 
the 300 linear foot limit on impacts to intermittent or ephemeral 
streams or of an otherwise applicable limit, as provided for in NWPs 
13, 21, 29, 36, 39, 40, 42, 43, 44, 50, A or B, the district engineer 
will only grant the waiver upon a written determination that the NWP 
activity will result in minimal adverse effects. When making minimal 
effects determinations the district engineer will consider the direct 
and indirect effects caused by the NWP activity. The district engineer 
will also consider site specific factors, such as the environmental 
setting in the vicinity of the NWP activity, the functions provided by 
the aquatic resources that will be affected by the NWP activity, the 
degree or magnitude the aquatic resources perform those functions, the 
extent that aquatic resource functions will be lost as a result of the 
NWP activity (e.g., partial or complete loss), the duration of the 
adverse effects (temporary or permanent), the importance of the aquatic 
resource functions to the region (e.g., watershed or ecoregion), and 
mitigation required by the district engineer. If an appropriate 
functional assessment method is available and practicable to use, that 
assessment method may be used by the district engineer to assist in the 
minimal adverse effects determination. The district engineer may add 
case-specific special conditions to the NWP authorization to address 
site-specific environmental concerns.
    (2) If the proposed activity requires a PCN and will result in a 
loss of greater than \1/10\-acre of wetlands, the prospective permittee 
should submit a mitigation proposal with the PCN. Applicants may also 
propose compensatory mitigation for projects with smaller impacts. The 
district engineer will consider any proposed compensatory mitigation 
the applicant has included in the proposal in determining whether the 
net adverse environmental effects to the aquatic environment of the 
proposed work are minimal. The compensatory mitigation proposal may be 
either conceptual or detailed. If the district engineer determines that 
the activity complies with the terms and conditions of the NWP and that 
the adverse effects on the aquatic environment are minimal, after 
considering mitigation, the district engineer will notify the permittee 
and include any conditions the district engineer deems necessary. The 
district engineer must approve any compensatory mitigation proposal 
before the permittee commences work. If the prospective permittee 
elects to submit a compensatory mitigation plan with the PCN, the 
district engineer will expeditiously review the proposed compensatory 
mitigation plan. The district engineer must review the plan within 45 
calendar days of receiving a complete PCN and determine whether the 
proposed mitigation would ensure no more than minimal adverse effects 
on the aquatic environment. If the net adverse effects of the project 
on the aquatic environment (after consideration of the compensatory 
mitigation proposal) are determined by the district engineer to be 
minimal, the district engineer will provide a timely written response 
to the applicant. The response will state that the project can proceed 
under the terms and conditions of the NWP.
    (3) If the district engineer determines that the adverse effects of 
the proposed work are more than minimal, then the district engineer 
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 
submission of a mitigation plan that would reduce the adverse effects 
on the aquatic environment to the minimal level; or (3) that the 
project is authorized under the NWP with specific modifications or 
conditions. Where the district engineer determines that mitigation is 
required to ensure no more than minimal adverse effects occur to the 
aquatic environment, the activity will be authorized within the 45-day 
PCN period. The authorization will include the necessary conceptual or 
specific mitigation or a requirement that the applicant submit a 
mitigation plan that would reduce the adverse effects on the aquatic 
environment to the minimal level. When mitigation is required, no work 
in waters of the United States may occur until the district engineer 
has approved a specific mitigation plan.

D. Further Information

    1. District Engineers have authority to determine if an activity 
complies with the terms and conditions of an NWP.
    2. NWPs do not obviate the need to obtain other Federal, state, or 
local permits, approvals, or authorizations required by law.
    3. NWPs do not grant any property rights or exclusive privileges.
    4. NWPs do not authorize any injury to the property or rights of 
others.
    5. NWPs do not authorize interference with any existing or proposed 
Federal project.

E. Definitions

    Best management practices (BMPs): Policies, practices, procedures, 
or structures implemented to mitigate the adverse environmental effects 
on surface water quality resulting from development. BMPs are 
categorized as structural or non-structural.
    Compensatory mitigation: The restoration (re-establishment or 
rehabilitation), establishment (creation), enhancement, and/or in 
certain circumstances preservation of aquatic resources for the 
purposes of offsetting unavoidable adverse impacts which remain after 
all appropriate and practicable avoidance and minimization has been 
achieved.
    Currently serviceable: Useable as is or with some maintenance, but 
not so degraded as to essentially require reconstruction.
    Discharge: The term ``discharge'' means any discharge of dredged or 
fill material and any activity that causes or results in such a 
discharge.
    Enhancement: The manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    Ephemeral stream: An ephemeral stream has flowing water only 
during, and for a short duration after, precipitation events in a 
typical year. Ephemeral stream beds are located above the water table 
year-round. Groundwater is not a source of water for the stream. Runoff 
from rainfall is the primary source of water for stream flow.
    Establishment (creation): The manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland site. Establishment 
results in a gain in aquatic resource area.

[[Page 9206]]

    High Tide Line: The line of intersection of the land with the 
water's surface at the maximum height reached by a rising tide. The 
high tide line may be determined, in the absence of actual data, by a 
line of oil or scum along shore objects, a more or less continuous 
deposit of fine shell or debris on the foreshore or berm, other 
physical markings or characteristics, vegetation lines, tidal gages, or 
other suitable means that delineate the general height reached by a 
rising tide. The line encompasses spring high tides and other high 
tides that occur with periodic frequency but does not include storm 
surges in which there is a departure from the normal or predicted reach 
of the tide due to the piling up of water against a coast by strong 
winds such as those accompanying a hurricane or other intense storm.
    Historic Property: Any prehistoric or historic district, site 
(including archaeological site), building, structure, or other object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. This term 
includes artifacts, records, and remains that are related to and 
located within such properties. The term includes properties of 
traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization and that meet the National Register 
criteria (36 CFR part 60).
    Independent utility: A test to determine what constitutes a single 
and complete non-linear project in the Corps regulatory program. A 
project is considered to have independent utility if it would be 
constructed absent the construction of other projects in the project 
area. Portions of a multi-phase project that depend upon other phases 
of the project do not have independent utility. Phases of a project 
that would be constructed even if the other phases were not built can 
be considered as separate single and complete projects with independent 
utility.
    Intermittent stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of waters of the United States: Waters of the United States 
that are permanently adversely affected by filling, flooding, 
excavation, or drainage because of the regulated activity. Permanent 
adverse effects include permanent discharges of dredged or fill 
material that change an aquatic area to dry land, increase the bottom 
elevation of a waterbody, or change the use of a waterbody. The acreage 
of loss of waters of the United States is a threshold measurement of 
the impact to jurisdictional waters for determining whether a project 
may qualify for an NWP; it is not a net threshold that is calculated 
after considering compensatory mitigation that may be used to offset 
losses of aquatic functions and services. The loss of stream bed 
includes the linear feet of stream bed that is filled or excavated. 
Waters of the United States temporarily filled, flooded, excavated, or 
drained, but restored to pre-construction contours and elevations after 
construction, are not included in the measurement of loss of waters of 
the United States. Impacts resulting from activities eligible for 
exemptions under Section 404(f) of the Clean Water Act are not 
considered when calculating the loss of waters of the United States.
    Non-tidal wetland: A non-tidal wetland is a wetland that is not 
subject to the ebb and flow of tidal waters. The definition of a 
wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous 
to tidal waters are located landward of the high tide line (i.e., 
spring high tide line).
    Open water: For purposes of the NWPs, an open water is any area 
that in a year with normal patterns of precipitation has water flowing 
or standing above ground to the extent that an ordinary high water mark 
can be determined. Aquatic vegetation within the area of standing or 
flowing water is either non-emergent, sparse, or absent. Vegetated 
shallows are considered to be open waters. Examples of ``open waters'' 
include rivers, streams, lakes, and ponds.
    Ordinary High Water Mark: An ordinary high water mark is a line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics, or by other appropriate means that consider 
the characteristics of the surrounding areas (see 33 CFR 328.3(e)).
    Perennial stream: A perennial stream has flowing water year-round 
during a typical year. The water table is located above the stream bed 
for most of the year. Groundwater is the primary source of water for 
stream flow. Runoff from rainfall is a supplemental source of water for 
stream flow.
    Practicable: Available and capable of being done after taking into 
consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Pre-construction notification: A request submitted by the project 
proponent to the Corps for confirmation that a particular activity is 
authorized by nationwide permit. The request may be a permit 
application, letter, or similar document that includes information 
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions 
of a nationwide permit, or by regional conditions. A pre-construction 
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent 
wants confirmation that the activity is authorized by nationwide 
permit.
    Preservation: The removal of a threat to, or preventing the decline 
of, aquatic resources by an action in or near those aquatic resources. 
This term includes activities commonly associated with the protection 
and maintenance of aquatic resources through the implementation of 
appropriate legal and physical mechanisms. Preservation does not result 
in a gain of aquatic resource area or functions.
    Re-establishment: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area and functions.
    Rehabilitation: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing 
natural/historic functions to a degraded aquatic resource. 
Rehabilitation results in a gain in aquatic resource function, but does 
not result in a gain in aquatic resource area.
    Restoration: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former or degraded aquatic resource. 
For the purpose of tracking net gains in aquatic resource area, 
restoration is divided into two categories: re-establishment and 
rehabilitation.
    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper areas associated with riffles. A slower stream 
velocity, a streaming flow, a smooth surface, and a finer substrate 
characterize pools.

[[Page 9207]]

    Riparian areas: Riparian areas are lands adjacent to streams, 
lakes, and estuarine-marine shorelines. Riparian areas are transitional 
between terrestrial and aquatic ecosystems, through which surface and 
subsurface hydrology connects waterbodies with their adjacent uplands. 
Riparian areas provide a variety of ecological functions and services 
and help improve or maintain local water quality. (See general 
condition 20.)
    Shellfish seeding: The placement of shellfish seed and/or suitable 
substrate to increase shellfish production. Shellfish seed consists of 
immature individual shellfish or individual shellfish attached to 
shells or shell fragments (i.e., spat on shell). Suitable substrate may 
consist of shellfish shells, shell fragments, or other appropriate 
materials placed into waters for shellfish habitat.
    Single and complete linear project: For linear projects, the term 
``single and complete project'' is defined as the total project 
proposed or accomplished by one owner/developer or partnership or other 
association of owners/developers and includes all crossings of a single 
water of the United States (i.e., a single waterbody) at a specific 
location. For linear projects crossing a single waterbody several times 
at separate and distant locations, each crossing is considered a single 
and complete project. However, individual channels in a braided stream 
or river, or individual arms of a large, irregularly shaped wetland or 
lake, etc., are not separate waterbodies, and crossings of such 
features cannot be considered separately.
    Single and complete non-linear project: For non-linear projects, 
the term ``single and complete project'' is defined at 33 CFR 330.2(i) 
as the total project proposed or accomplished by one owner/developer or 
partnership or other association of owners/developers. A single and 
complete non-linear project must have independent utility (see 
definition of ``independent utility'').
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and best management practices, which 
retain water for a period of time to control runoff and/or improve the 
quality (i.e., by reducing the concentration of nutrients, sediments, 
hazardous substances and other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized stream remains a 
water of the United States.
    Structure: An object that is arranged in a definite pattern of 
organization. Examples of structures include, without limitation, any 
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, 
bulkhead, revetment, riprap, jetty, artificial island, artificial reef, 
permanent mooring structure, power transmission line, permanently 
moored floating vessel, piling, aid to navigation, or any other manmade 
obstacle or obstruction.
    Tidal wetland: A tidal wetland is a wetland (i.e., water of the 
United States) that is inundated by tidal waters. The definitions of a 
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 
328.3(f), respectively. Tidal waters rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters end where the rise and fall of the water surface 
can no longer be practically measured in a predictable rhythm due to 
masking by other waters, wind, or other effects. Tidal wetlands are 
located channelward of the high tide line, which is defined at 33 CFR 
328.3(d).
    Vegetated shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Waterbody: For purposes of the NWPs, a waterbody is a 
jurisdictional water of the United States that, during a year with 
normal patterns of precipitation, has water flowing or standing above 
ground to the extent that an ordinary high water mark (OHWM) or other 
indicators of jurisdiction can be determined, as well as any wetland 
area (see 33 CFR 328.3(b)). If a jurisdictional wetland is adjacent--
meaning bordering, contiguous, or neighboring--to a jurisdictional 
waterbody displaying an OHWM or other indicators of jurisdiction, that 
waterbody and its adjacent wetlands are considered together as a single 
aquatic unit (see 33 CFR 328.4(c)(2)). Examples of ``waterbodies'' 
include streams, rivers, lakes, ponds, and wetlands.

[FR Doc. 2011-3371 Filed 2-15-11; 8:45 am]
BILLING CODE 3720-58-P
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