1 

 DRAFT DECISION DOCUMENT 

NATIONWIDE PERMIT 49

This document discusses the factors considered by the Corps of Engineers (Corps) during 

the issuance process for this Nationwide Permit (NWP). This document contains: (1) the 

public interest review required by Corps regulations at 33 CFR 320.4(a)(1) and (2); (2) a 

discussion of the environmental considerations necessary to comply with the National 

Environmental Policy Act; and (3) the impact analysis specified in Subparts C through F of 

the 404(b)(1) Guidelines (40 CFR Part 230). This evaluation of the NWP includes a 

discussion of compliance with applicable laws, consideration of public comments, an 

alternatives analysis, and a general assessment of individual and cumulative impacts, 

including the general potential effects on each of the public interest factors specified at 33 

CFR 320.4(a). 

1.0 Text of the Nationwide Permit 

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 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) 

1.1 Requirements 

General conditions of the NWPs are in the Federal Register notice announcing the issuance 

of this NWP. Pre-construction notification requirements, additional conditions, limitations, 

and restrictions are in 33 CFR part 330. 
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1.2 Statutory Authority 

 Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) 

 Section 404 of the Clean Water Act (33 U.S.C. 1344) 

1.3 Compliance with Related Laws (33 CFR 320.3) 

1.3.1 General 

NWPs are a type of general permit designed to authorize certain activities that have minimal 

adverse effects on the aquatic environment and generally comply with the related laws cited 

in 33 CFR 320.3. Activities that result in more than minimal adverse effects on the aquatic 

environment, individually or cumulatively, cannot be authorized by NWPs. Individual 

review of each activity authorized by an NWP will not normally be performed, except when 

preconstruction notification to the Corps is required or when an applicant requests 

verification that an activity complies with an NWP. Potential adverse impacts and 

compliance with the laws cited in 33 CFR 320.3 are controlled by the terms and conditions 

of each NWP, regional and case-specific conditions, and the review process that is 

undertaken prior to the issuance of NWPs. 

The evaluation of this NWP, and related documentation, considers compliance with each of 

the following laws, where applicable: Sections 401, 402, and 404 of the Clean Water Act; 

Section 307(c) of the Coastal Zone Management Act of 1972, as amended; Section 302 of 

the Marine Protection, Research and Sanctuaries Act of 1972, as amended; the National 

Environmental Policy Act of 1969; the Fish and Wildlife Act of 1956; the Migratory Marine 

Game-Fish Act; the Fish and Wildlife Coordination Act, the Federal Power Act of 1920, as 

amended; the National Historic Preservation Act of 1966; the Interstate Land Sales Full 

Disclosure Act; the Endangered Species Act; the Deepwater Port Act of 1974; the Marine 

Mammal Protection Act of 1972; Section 7(a) of the Wild and Scenic Rivers Act; the Ocean 

Thermal Energy Act of 1980; the National Fishing Enhancement Act of 1984; the 

Magnuson-Stevens Fishery and Conservation and Management Act, the Bald and Golden 

Eagle Protection Act; and the Migratory Bird Treaty Act . In addition, compliance of the 

NWP with other Federal requirements, such as Executive Orders and Federal regulations 

addressing issues such as floodplains, essential fish habitat, and critical resource waters is 

considered. 

1.3.2 Terms and Conditions 

Many NWPs have notification requirements that trigger case-by-case review of certain 

activities. Two NWP general conditions require case-by-case review of all activities that 

may adversely affect Federally-listed endangered or threatened species or historic properties 

(i.e., general conditions 19 and 20). General condition 17 restricts the use of NWPs for 

activities that are located in Federally-designated wild and scenic rivers. None of the NWPs 

authorize artificial reefs. General condition 27 prohibits the use of an NWP with other 

NWPs, except when the acreage loss of waters of the United States does not exceed the 

highest specified acreage limit of the NWPs used to authorize the single and complete 
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project. 

In some cases, activities authorized by an NWP may require other federal, state, or local 

authorizations. Examples of such cases include, but are not limited to: activities that are in 

marine sanctuaries or affect marine sanctuaries or marine mammals; the ownership, 

construction, location, and operation of ocean thermal conversion facilities or deep water 

ports beyond the territorial seas; activities that result in discharges of dredged or fill material 

into waters of the United States and require Clean Water Act Section 401 water quality 

certification; or activities in a state operating under a coastal zone management program 

approved by the Secretary of Commerce under the Coastal Zone Management Act. In such 

cases, a provision of the NWPs states that an NWP does not obviate the need to obtain other 

authorizations required by law. [33 CFR 330.4(b)(2)] 

Additional safeguards include provisions that allow the Chief of Engineers, division 

engineers, and/or district engineers to: assert discretionary authority and require an 

individual permit for a specific activity; modify NWPs for specific activities by adding 

special conditions on a case-by-case basis; add conditions on a regional or nationwide basis 

to certain NWPs; or take action to suspend or revoke an NWP or NWP authorization for 

activities within a region or state. Regional conditions are imposed to protect important 

regional concerns and resources. [33 CFR 330.4(e) and 330.5] 

1.3.3 Review Process 

The analyses in this document and the coordination that was undertaken prior to the 

issuance of the NWP fulfill the requirements of the National Environmental Policy Act 

(NEPA), the Fish and Wildlife Coordination Act, and other acts promulgated to protect the 

quality of the environment. 

All NWPs that authorize activities which may result in discharges of dredged or fill material 

into waters of the United States require water quality certification. NWPs that authorize 

activities within, or affecting land or water uses within a state that has a Federally-approved 

coastal zone management program, must also be certified as consistent with the state’s 

program. The procedures to ensure that the NWPs comply with these laws are described in 

33 CFR 330.4(c) and (d), respectively. 

1.4 Public Comment and Response 

For a summary of the public comments received in response to the February 16, 2011, 

Federal Register notice, refer to the preamble in the Federal Register notice announcing the 

reissuance of this NWP. The substantive comments received in response to the February 16, 

2011, Federal Register notice were used to improve the NWP by changing NWP terms and 

limits, notification requirements, and/or NWP general conditions, as necessary. 

The Corps proposed to modify this NWP to clarify the extent of new coal mining activities 

that can be authorized by this NWP. 
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[This section to be completed for the final NWP.] 

2.0 Alternatives 

This evaluation includes an analysis of alternatives based on the requirements of NEPA, 

which requires a more expansive review than the Clean Water Act Section 404(b)(1) 

Guidelines. The alternatives discussed below are based on an analysis of the potential 

environmental impacts and impacts to the Corps, Federal, Tribal, and state resource 

agencies, general public, and prospective permittees. Since the consideration of off-site 

alternatives under the 404(b)(1) Guidelines does not apply to specific projects authorized by 

general permits, the alternatives analysis discussed below consists of a general NEPA 

alternatives analysis for the NWP. 

2.1 No Action Alternative (No Nationwide Permit) 

The no action alternative would not achieve one of the goals of the Corps Nationwide 

Permit Program, which is to reduce the regulatory burden on applicants for activities that 

result in minimal adverse effects on the aquatic environment, individually or cumulatively. 

The no action alternative would also reduce the Corps ability to pursue the current level of 

review for other activities that have greater adverse effects on the aquatic environment, 

including activities that require individual permits as a result of the Corps exercising its 

discretionary authority under the NWP program. The no action alternative would also 

reduce the Corps ability to conduct compliance actions. 

If this NWP is not available, substantial additional resources would be required for the 

Corps to evaluate these minor activities through the individual permit process, and for the 

public and Federal, Tribal, and state resource agencies to review and comment on the large 

number of public notices for these activities. In a considerable majority of cases, when the 

Corps publishes public notices for proposed activities that result in minimal adverse effects 

on the aquatic environment, the Corps typically does not receive responses to these public 

notices from either the public or Federal, Tribal, and state resource agencies. Another 

important benefit of the NWP program that would not be achieved through the no action 

alternative is the incentive for project proponents to design their projects so that those 

activities meet the terms and conditions of an NWP. The Corps believes the NWPs have 

significantly reduced adverse effects to the aquatic environment because most applicants 

modify their projects to comply with the NWPs and avoid the delays and costs typically 

associated with the individual permit process. 

In the absence of this NWP, Department of the Army (DA) authorization in the form of 

another general permit (i.e., regional or programmatic general permits, where available) or 

individual permits would be required. Corps district offices may develop regional general 

permits if an NWP is not available, but this is an impractical and inefficient method for 

activities with minimal individual or cumulative adverse effects on the aquatic environment 

that are conducted across the Nation. Not all districts would develop these regional general 

permits for a variety of reasons. The regulated public, especially those companies that 

conduct work in more than one Corps district, would be adversely affected by the 
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widespread use of regional general permits because of the greater potential for lack of 

consistency and predictability in the authorization of similar activities with minimal adverse 

effects on the aquatic environment. These companies would incur greater costs in their 

efforts to comply with different regional general permit requirements between Corps 

districts. Nevertheless, in some states Corps districts have issued programmatic general 

permits to take the place of this and other NWPs. However, this approach only works in 

states with regulatory programs comparable to the Corps Regulatory Program. 

2.2 National Modification Alternatives 

Since the Corps Nationwide Permit program began in 1977, the Corps has continuously 

strived to develop NWPs that authorize activities that result only in minimal adverse effects 

on the aquatic environment, individually or cumulatively. Every five years the Corps 

reevaluates the NWPs during the reissuance process, and may modify an NWP to address 

concerns for the aquatic environment. Utilizing collected data and institutional knowledge 

concerning activities authorized by the Corps regulatory program, the Corps reevaluates the 

potential impacts of activities authorized by NWPs. The Corps also uses substantive public 

comments on proposed NWPs to assess the expected impacts. This NWP was developed to 

authorize discharges of dredged or fill material into waters of the United States associated 

with surface coal mining and reclamation operations that were authorized by the Department 

of the Interior’s Office of Surface Mining or states with approved programs under Title V of 

the Surface Mining Control and Reclamation Act of 1977, provided those activities have 

minimal adverse effects on the aquatic environment. This NWP also authorizes coal 

remining activities being processed under integrated permit processing procedures. The 

Corps has considered suggested changes to the terms and conditions of this NWP, as well as 

modifying or adding NWP general conditions, as discussed in the preamble of the Federal 

Register notice announcing the proposed reissuance of this NWP. 

In the February 16, 2011, Federal Register notice, the Corps requested comments on the 

proposed reissuance of this NWP. The Corps proposed to modify this NWP to clarify the 

extent of new coal mining activities that can be authorized by this NWP. 

2.3 Regional Modification Alternatives 

An important aspect for the NWPs is the emphasis on regional conditions to address 

differences in aquatic resource functions, services, and values across the nation. All Corps 

divisions and districts are expected to add regional conditions to the NWPs to enhance 

protection of the aquatic environment and address local concerns. Division engineers can 

also revoke an NWP if the use of that NWP results in more than minimal adverse effects on 

the aquatic environment, especially in high value or unique wetlands and other waters. 

Corps divisions and districts also monitor and analyze the cumulative adverse effects of the 

NWPs, and if warranted, further restrict or prohibit the use of the NWPs to ensure that the 

NWPs do not authorize activities that result in more than minimal adverse effects on the 

aquatic environment. To the extent practicable, division and district engineers will use 

regulatory automated information systems and institutional knowledge about the typical 
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adverse effects of activities authorized by NWPs, as well as substantive public comments, to 

assess the individual and cumulative adverse effects on the aquatic environment resulting 

from regulated activities. 

2.4 Case-specific On-site Alternatives 

Although the terms and conditions for this NWP have been established at the national level 

to authorize most activities that have minimal adverse effects on the aquatic environment, 

division and district engineers have the authority to impose case-specific special conditions 

on an NWP authorization to ensure that the authorized work will result in minimal adverse 

effects. 

General condition 22 requires the permittee to minimize and avoid impacts to waters of the 

United States to the maximum extent practicable on the project site. Off-site alternatives 

cannot be considered for activities authorized by NWPs. During the evaluation of a preconstruction notification, the district engineer may determine that additional avoidance and 

minimization is practicable. The district engineer may also condition the NWP 

authorization to require compensatory mitigation to offset losses of waters of the United 

States and ensure that the net adverse effects on the aquatic environment are minimal. As 

another example, the NWP authorization can be conditioned to prohibit the permittee from 

conducting the work during specific times of the year to protect spawning fish and shellfish. 

 If the proposed work will result in more than minimal adverse effects on the aquatic 

environment, then the district engineer will exercise discretionary authority and require an 

individual permit. Discretionary authority can be asserted where there are concerns for the 

aquatic environment, including high value aquatic habitats. The individual permit review 

process requires a project-specific alternatives analysis, including the consideration of offsite alternatives, and a public interest review. 

3.0 Affected Environment 

The affected environment consists of terrestrial and aquatic ecosystems. The total land area 

in the contiguous United States is approximately 1,930,000,000 acres (Dahl 2006). Alaska 

is 366,050,000 acres in size and Hawaii is 4,110,720 acres in size (source: 

http://www.usgs.gov/state/ , accessed July 25, 2005). Terrestrial ecosystems comprise more 

than 93 percent of the contiguous United States and aquatic ecosystems make up the 

remainder (Dahl 2006). In the contiguous United States, approximately 67 percent of the 

land is privately owned, 31 percent is held by the United States government, and two 

percent is owned by state or local governments (Dale et al. 2000). Developed non-federal 

lands comprise 4.4 percent of the total land area of the contiguous United States (Dale et al. 

2000). 

The Federal Geographic Data Committee has established the Cowardin system developed by 

the U.S. Fish and Wildlife Service (USFWS) (Cowardin et al. 1979) as the national standard 

for wetland mapping, monitoring, and data reporting (Dahl 2006) (see also 

http://www.fgdc.gov/standards/projects/FGDC-standards-projects/wetlands/fgdc-announce , 
7 

accessed April 3, 2006). The Cowardin system is a hierarchical system which describes 

various wetland and deepwater habitats, using structural characteristics such as vegetation, 

substrate, and water regime as defining characteristics. Wetlands are defined by vegetation 

type, soils, and flooding frequency. Deepwater habitats are permanently flooded areas 

located below the wetland boundary. In rivers and lakes, deepwater habitats are usually 

more than two meters deep. 

There are five major systems in the Cowardin classification scheme: marine, estuarine, 

riverine, lacustrine, and palustrine (Cowardin et al. 1979). The marine system consists of 

open ocean on the continental shelf and its high energy coastline. The estuarine system 

consists of tidal deepwater habitats and adjacent tidal wetlands that are usually partially 

enclosed by land, but may have open connections to open ocean waters. The riverine 

system generally consists of all wetland and deepwater habitats located within a river 

channel. The lacustrine system generally consists of wetland and deepwater habitats located 

within a topographic depression or dammed river channel, with a total area greater than 20 

acres. The palustrine system generally includes all non-tidal wetlands and wetlands located 

in tidal areas with salinities less than 0.5 parts per thousand; it also includes ponds less than 

20 acres in size. Approximately 95 percent of wetlands in the conterminous United States 

are freshwater wetlands, and the remaining 5 percent are estuarine or marine wetlands (Dahl 

2006). 

The Emergency Wetlands Resources Act of 1986 (Public Law 99-645) requires the USFWS 

to submit wetland status and trends reports to Congress (Dahl 2006). The latest status and 

trends report, which covers the period of 1998 to 2004, is summarized in Table 3.1. 
8 

Table 3.1. Estimated aquatic resource acreages in the conterminous United States in 

2004 (Dahl 2006). 

Aquatic Habitat Category 

Estimated Area 

in 2004 

(acres) 

Marine 128,600 

Estuarine intertidal non-vegetated 600,000 

Estuarine intertidal vegetated 4,571,700 

All intertidal waters and wetlands 5,300,300 

Palustrine non-vegetated 6,633,900 

Palustrine vegetated 95,819,800 

 Palustrine emergent wetlands 26,147,000 

 Palustrine forested wetlands 52,031,400 

 Palustrine shrub wetlands 17,641,400 

All palustrine aquatic habitats 102,453,700 

Lacustrine deepwater habitats 16,773,400 

Riverine deepwater habitats 6,813,300 

Estuarine subtidal habitats 17,717,800 

All aquatic habitats 149,058,500 

The acreage of lacustrine deepwater habitats does not include the open waters of Great 

Lakes (Dahl 2006). 

According to Hall et al. (1994), there are more than 204 million acres of wetlands and 

deepwater habitats in the State of Alaska, including approximately 174.7 million acres of 

wetlands. Wetlands and deepwater habitats comprise approximately 50.7 percent of the 

surface area in Alaska (Hall et al. 1994). 

The National Resources Inventory (NRI) is a statistical survey conducted by the Natural 

Resources Conservation Service (NRCS) (2009) of natural resources on non-federal land in 

the United States. The NRCS defines non-federal land as privately owned lands, tribal and 

trust lands, and lands under the control of local and State governments. The land use 

determined by 2007 NRI is summarized in Table 3.2. The 2007 NRI estimates that there are 

110,671,500 acres of palustrine and estuarine wetlands on non-Federal land and water areas 

in the United States (NRCS 2009). The 2007 NRI estimates that there are 48,471,100 acres 

of open waters on non-Federal land in the United States, including lacustrine, riverine, and 

marine habitats, as well as estuarine deepwater habitats. 
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Table 3.2. The 2007 National Resources Inventory acreages for palustrine and 

estuarine wetlands on non-federal land, by land cover/use category (NRCS 

2009). 

National Resources Inventory Land Cover/Use Category 

Area of Palustrine and 

Estuarine Wetlands 

(acres) 

cropland, pastureland, and Conservation Reserve Program 

land 16,790,300 

forest land 66,043,100 

rangeland 7,940,300 

other rural land 14,744,800 

developed land 1,571,900 

water area 3,581,100 

Total 110,671,500 

The land cover/use categories used by the 2007 NRI are defined below (NRCS 2009). 

Croplands are areas used to produce crops adapted for harvest. Pastureland is land managed 

for livestock grazing, through the production of introduced forage plants. Conservation 

Reserve Program land is under a Conservation Reserve Program contract. Forest land is 

comprised of at least 10 percent single stem woody plant species that will be at least 13 feet 

tall at maturity. Rangeland is land on which plant cover consists mostly of native grasses, 

herbaceous plants, or shrubs suitable for grazing or browsing, and introduced forage plant 

species. Other rural land consists of farmsteads and other farm structures, field windbreaks, 

marshland, and barren land. Developed land is comprised of large urban and built-up areas 

(i.e., urban and built-up areas 10 acres or more in size), small built-up areas (i.e., developed 

lands 0.25 to 10 acres in size) , and rural transportation land (e.g., roads, railroads, and 

associated rights-of-way outside urban and built-up areas). Water areas are comprised of 

waterbodies and streams that are permanent open waters. 

Leopold, Wolman, and Miller (1964) estimated that there are approximately 3,250,000 miles 

of river and stream channels in the United States. This estimate is based on an analysis of 

1:24,000 scale topographic maps, by stream order. This estimate does not include many 

small streams. Many small streams are not mapped on 1:24,000 scale U.S. Geological 

Survey topographic maps (Leopold 1994) or included in other analyses (Meyer and Wallace 

2001). In a study of stream mapping in the southeastern United States, only 20% of the 

stream network was mapped on 1:24,000 scale topographic maps, and nearly none of the 

observed intermittent or ephemeral streams were indicated on those maps (Hansen 2001). 

For a 1:24,000 scale topographic map, the smallest tributary found by using 10-foot contour 

interval has drainage area of 0.7 square mile and length of 1,500 feet, and smaller channels 

are common throughout the United States (Leopold 1994). Due to the difficulty in mapping 

small streams, there are no accurate estimates of the total number of river or stream miles in 

the conterminous United States that may be classified as “waters of the United States.” 
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The USFWS status and trends study does not assess the condition or quality of wetlands and 

deepwater habitats (Dahl 2006). The Nation’s aquatic resource base is underestimated by 

the USFWS status and trends study, the National Wetland Inventory (NWI), and studies that 

estimate the length or number of stream channels within watersheds (see above). The 2006 

status and trends study does not include Alaska and Hawaii. The underestimate by the status 

and trends study and the NWI results from the minimum size of wetlands detected through 

remote sensing techniques and the difficulty of identifying certain wetland types through 

those remote sensing techniques. The NWI maps do not show small or linear wetlands 

(Tiner 1997) that may be directly impacted by activities authorized by NWPs. For the latest 

USFWS status and trends study, most of the wetlands identified are larger than 2.5 acres, but 

the minimum size of detectable wetland varies by wetland type (Dahl 2006). Some wetland 

types less than one acre in size can be identified; the smallest wetland detected for the most 

recent status and trends report was 0.005 acre (Dahl 2006). Because of the limitations of 

remote sensing techniques, certain wetland types are not included in the USFWS status and 

trends study: seagrass beds, submerged aquatic vegetation, submerged reefs, certain types of 

forested wetlands, and emergent wetlands along the Pacific coast (Dahl 2006). Therefore, 

activities authorized by NWPs will adversely affect a smaller proportion of the Nation’s 

wetland base than indicated by the wetlands acreage estimates provided in the most recent 

status and trends report, or the NWI maps for a particular region. 

Not all of the Nation’s aquatic resources are subject to regulatory jurisdiction under Section 

404 of the Clean Water Act. Waters of the United States subject to Section 404 of the Clean 

Water Act are defined at 33 CFR part 328. Some wetlands are not subject to Clean Water 

Act jurisdiction because they do not meet the criteria at Part 328. In its decision in Solid 

Waste County of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 

(2001), the U.S. Supreme Court ruled that Clean Water Act jurisdiction does not apply to 

isolated, intrastate, non-navigable waters based on their use as habitat for migratory birds. 

Tiner (2003) estimated that in some areas of the country, the proportion of wetlands that are 

geographically isolated, and may not be subject to Clean Water Act jurisdiction is 

approximately 20 to 50 percent of the wetland area, and there are other areas where more 

than 50 percent of the wetlands are geographically isolated. Geographically isolated 

wetlands comprise a substantial proportion of the wetlands found in regions with arid, semiarid, and semi-humid climates, as well as areas with karst topography (Tiner 2003). 

However, it is difficult to determine from maps or aerial photographs whether wetlands are 

hydrologically isolated from other waters, because there may be small surface hydrologic 

connections that are not included on those maps or detected by those photographs (Tiner 

2003). The scope of waters subject to Clean Water Act jurisdiction has also been affected by 

the U.S. Supreme Court decision in the consolidated cases of Rapanos v. U.S. and Carabell 

v. U.S., but there have been no formal studies to estimate the proportion of wetlands, 

streams, and other aquatic resources that may have been affected by that decision. 

This NWP authorizes discharges of dredged or fill material into waters of the United States. 

Surface coal remining activities typically occur in areas with palustrine, lacustrine, and 

riverine systems of the Cowardin classification system. 

Wetland functions are the biophysical processes that occur within a wetland (King et al. 
11 

2000). Wetlands provide many functions, such as habitat for fish and shellfish, habitat for 

waterfowl and other wildlife, habitat for rare and endangered species, food production, plant 

production, flood conveyance, flood-peak reduction, flood storage, shoreline stabilization, 

water supply, ground water recharge, pollutant removal, sediment accretion, and nutrient 

uptake (NRC 1992). 

Functions provided by streams include sediment transport, water transport, transport of 

nutrients and detritus, habitat for many species of plants and animals (including endangered 

or threatened species), and maintenance of biodiversity (NRC 1992). Streams also provide 

hydrologic functions, nutrient cycling functions, food web support, and corridors for 

movement of aquatic organisms (Allan and Castillo 2007). 

Freshwater ecosystems provide services such as water for drinking, household uses, 

manufacturing, thermoelectric power generation, irrigation, and aquaculture; production of 

finfish, waterfowl, and shellfish; and non-extractive services, such as flood control, 

transportation, recreation (e.g., swimming and boating), pollution dilution, hydroelectric 

generation, wildlife habitat, soil fertilization, and enhancement of property values (Postel 

and Carpenter 1997). 

Marine ecosystems provide a number of ecosystem services, including fish production; 

materials cycling (e.g., nitrogen, carbon, oxygen, phosphorous, and sulfur); transformation, 

detoxification, and sequestration of pollutants and wastes produced by humans; support of 

ocean-based recreation, tourism, and retirement industries; and coastal land development 

and valuation, including aesthetics related to living near the ocean (Peterson and Lubchenco 

1997). 

Activities authorized by this NWP will provide goods and services that are valued by 

society. For example, coal extracted through coal remining activities provide energy for a 

wide range of uses. Energy produced from coal may be converted into electrical energy that 

is used by residents, businesses, industry, and other entities. Reclamation activities that 

occur on these previously mined areas will establish or restore ecological functions and 

services at these areas. 

4.0 Environmental Consequences 

4.1 General Evaluation Criteria 

This document contains a general assessment of the foreseeable effects of the individual 

activities authorized by this NWP and the anticipated cumulative effects of those activities. 

In the assessment of these individual and cumulative effects, the terms and limits of the 

NWP, notification requirements, and the standard NWP general conditions are considered. 

The supplementary documentation provided by division engineers will address how regional 

conditions affect the individual and cumulative effects of the NWP. 

The following evaluation comprises the NEPA analysis, the public interest review specified 
12 

in 33 CFR 320.4(a)(1) and (2), and the impact analysis specified in Subparts C through F of 

the 404(b)(1) Guidelines (40 CFR Part 230). 

The issuance of an NWP is based on a general assessment of the effects on public interest 

and environmental factors that are likely to occur as a result of using this NWP to authorize 

activities in waters of the United States. As such, this assessment must be speculative or 

predictive in general terms. Since NWPs authorize activities across the nation, projects 

eligible for NWP authorization may be constructed in a wide variety of environmental 

settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated 

with each activity authorized by an NWP. For example, the NWP that authorizes 25 cubic 

yard discharges of dredged or fill material into waters of the United States may be used to 

fulfill a variety of project purposes. Indication that a factor is not relevant to a particular 

NWP does not necessarily mean that the NWP would never have an effect on that factor, but 

that it is a factor not readily identified with the authorized activity. Factors may be relevant, 

but the adverse effects on the aquatic environment are negligible, such as the impacts of a 

boat ramp on water level fluctuations or flood hazards. Only the reasonably foreseeable 

direct or indirect effects are included in the environmental assessment for this NWP. 

Division and district engineers will impose, as necessary, additional conditions on the NWP 

authorization or exercise discretionary authority to address locally important factors or to 

ensure that the authorized activity results in no more than minimal individual and 

cumulative adverse effects on the aquatic environment. In any case, adverse effects will be 

controlled by the terms, conditions, and additional provisions of the NWP. For example, 

Section 7 Endangered Species Act consultation will be required for activities that may affect 

endangered or threatened species or critical habitat. 

4.2 Impact Analysis 

This NWP authorizes discharges of dredged or fill material into waters of the United States 

for coal remining activities that are already authorized by the Office of Surface Mining, 

approved state agencies under Title V of the Surface Mining Control and Reclamation Act 

of 1977, or through integrated permit processing procedures. These remining activities 

normally result in net increases in aquatic resource functions. The ratio of previously mined 

areas to new coal removal areas must be greater than 60 percent. 

Pre-construction notification is required for all activities authorized by this NWP. The preconstruction notification requirement allows district engineers to review proposed activities 

on a case-by-case basis to ensure that the adverse effects of those activities on the aquatic 

environment are minimal. If the district engineer determines that the adverse effects of a 

particular project are more than minimal after considering mitigation, then discretionary 

authority will be asserted and the applicant will be notified that another form of DA 

authorization, such as a regional general permit or individual permit, is required (see 33 

CFR 330.4(e) and 330.5). 

Additional conditions can be placed on proposed activities on a regional or case-by-case 

basis to ensure that the work has minimal adverse effects on the aquatic environment. 

Regional conditioning of this NWP will be used to account for differences in aquatic 
13 

resource functions, services, and values across the country, ensure that the NWP authorizes 

only those activities with minimal individual or cumulative adverse effects on the aquatic 

environment, and allow each Corps district to prioritize its workload based on where its 

efforts will best serve to protect the aquatic environment. Regional conditions can prohibit 

the use of an NWP in certain waters (e.g., high value waters or specific types of wetlands or 

waters), lower notification thresholds, or require notification for all work in certain 

watersheds or types of waters. Specific NWPs can also be revoked on a geographic or 

watershed basis where the adverse effects resulting from the use of those NWPs are more 

than minimal. 

In high value waters, division and district engineers can: 1) prohibit the use of the NWP in 

those waters and require an individual permit or regional general permit; 2) impose an 

acreage limit on the NWP; 3) add regional conditions to the NWP to ensure that the adverse 

environmental effects are minimal; or 4) add special conditions to NWP authorizations, such 

as compensatory mitigation requirements, to ensure that the adverse effects on the aquatic 

environment are minimal. NWPs can authorize activities in high value waters as long as the 

individual and cumulative adverse effects on the aquatic environment are minimal. 

The construction and use of fills for temporary access for construction may be authorized by 

NWP 33 or regional general permits issued by division or district engineers. The related 

work must meet the terms and conditions of the specified permit(s). If the discharge is 

dependent on portions of a larger project that require an individual permit, this NWP will 

not apply. [See 33 CFR 330.6(c) and (d)] 

4.3 Cumulative Impacts 

The Council on Environmental Quality’s NEPA regulations define cumulative impact as: 

“the impact on the environment which results from the incremental impact of the action 

when added to other past, present, and reasonably foreseeable future actions regardless of 

what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative 

impacts can result from individually minor but collectively significant actions taking place 

over a period of time.” [See 40 CFR 1508.7.] The NEPA cumulative impacts analysis for an 

NWP includes Federal and non-Federal activities that affect the Nation’s wetlands, streams, 

and other aquatic resources, and is not limited to activities authorized by NWPs or other DA 

permits. The geographic scope of the cumulative impacts analysis is the United States, 

where the NWP can be used to authorize activities that require DA authorization. The 

temporal scope of the cumulative effects analysis includes past actions that have affected the 

Nation’s wetlands, streams, and other aquatic resources, as well as present actions and 

reasonably foreseeable future actions that affect aquatic resources. 

There are many activities that contribute to cumulative effects on wetlands, streams, and 

other aquatic resources in the United States, and alter the quantity and quality of those 

resources. Not all of those activities are regulated by the Corps under Section 404 of the 

Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. Federal, nonfederal, and private activities contribute cumulative effects to aquatic resources. Activities 

authorized by DA permits, including structures and work in navigable waters and discharges 
14 

of dredged or fill material, can directly or indirectly cause the loss of, or adversely affect the 

functions provided by, wetlands, streams, and other aquatic resources. Activities that do not 

require DA permits, because they are exempt from section 404 permit requirements, can 

also adversely affect the quantity and quality of the Nation’s wetlands, streams, and other 

aquatic resources. Discharges of dredged or fill material that convert wetlands, streams, and 

other aquatic resources to upland areas result in permanent losses of aquatic resource 

functions and services. Temporary fills and other activities may cause short-term or partial 

losses of aquatic resource functions and services. 

In addition to activities regulated and authorized by the Corps, including those authorized by 

this nationwide permit, other include federal, non-federal, and private actions not regulated 

by the Corps have cumulative effects on the Nation’s wetlands, streams, and aquatic 

resources, and adversely affect the quantity and quality of those resources. Changes in the 

use of uplands next to or near wetlands, streams, and other aquatic resources may directly or 

indirectly diminish the ecological functions and services provided by those waters (e.g., 

Allan 2004 for streams; Zedler and Kercher 2005 for wetlands). 

Actions that affect wetland quantity and quality include: land use changes that alter local 

hydrology (including water withdrawal), clearing and draining wetlands, constructing levees 

that sever hydrologic connections between rivers and floodplain wetlands, constructing 

other obstructions to water flow (e.g., dams, locks), constructing water diversions, 

accumulating nutrients and contaminants, and fire suppression (Brinson and Malvárez. 

2002). 

Actions that affect the quantity and quality of streams and rivers include habitat alterations 

caused by dam construction, channelization, and land use changes; changes in species 

composition caused by non-indigenous species; and additions of pollutants through either 

point sources or non-point sources (Allan and Castillo 2007). In urbanized and agricultural 

watersheds, the number of small stream channels has been substantially reduced, in part by 

activities that occurred between the 19th and mid-20th centuries (Meyer and Wallace 2001). 

Activities that affect the quantity and quality of small streams include residential, 

commercial, and industrial development, mining, agricultural activities, forestry activities, 

and road construction (Meyer and Wallace 2001). 

Dahl (1990) estimates that approximately 53 percent of the wetlands in the conterminous 

United States were lost in the 200-year period covering the 1780s to 1980s. The annual rate 

of wetland loss has decreased substantially since the 1970s (Dahl 2006), when wetland 

regulation became more prevalent (Brinson and Malvárez. 2002). According to the 2006 

status and trends report, during the period of 1998 to 2004 urban development accounted for 

39% of wetland losses (88,960 acres), rural development resulted in 22% of wetland losses 

(51,440 acres), silviculture accounted for 8% of wetland losses (18,000 acres), and wetland 

conversion to deepwater habitats caused a 31% loss in wetland area (70,100 acres) (Dahl 

2006). Some of the losses are for non-jurisdictional wetlands and some losses may be due to 

activities not regulated under Section 404 of the Clean Water Act, such as unregulated 

drainage activities or water withdrawals. From 1998 to 2004, approximately 70,770 acres of 

wetlands were gained as a result of wetland restoration and conservation programs on 
15 

agricultural land (Dahl 2006). Another source of wetland gain is conversion of uplands to 

wetlands (349,600 acres during the same time period) (Dahl 2006). It is important to 

understand that inventories of wetlands, streams, and other aquatic resources are likely to be 

incomplete (e.g., Dahl 2006. Meyer and Wallace 2001), which further complicates 

cumulative effects analysis. 

The estimated contribution of this NWP to the cumulative effects to wetlands, streams, and 

other aquatic resources in the United States during the five year period the NWP is in effect 

is provided in section 6.2.2. 

In a specific watershed, division or district engineers may determine that the cumulative 

adverse effects of activities authorized by NWPs are more than minimal. Division and 

district engineers will conduct more detailed assessments for geographic areas that are 

determined to be potentially subject to more than minimal cumulative adverse effects. 

Division and district engineers have the authority to require individual permits where the 

cumulative adverse effects are more than minimal, or add conditions to the NWP either on a 

case-by-case or regional basis to ensure that the cumulative adverse effects are minimal. 

When division or district engineers determine that a geographic area is subject to more than 

minimal cumulative adverse effects due to the use of the NWPs, they will use the revocation 

and modification procedure at 33 CFR 330.5. In reaching the final decision, they will 

compile information on the cumulative adverse effects and supplement this document. 

The Corps expects that the convenience and time savings associated with the use of this 

NWP will encourage applicants to design their projects within the scope of the NWP rather 

than request individual permits for projects which could result in greater adverse impacts to 

the aquatic environment. The minimization encouraged by the issuance of this NWP, as well 

as compensatory mitigation that may be required for specific activities authorized by this 

NWP, will help reduce cumulative effects to the Nation’s aquatic resources. 

5.0 Public Interest Review 

5.1 Public Interest Review Factors (33 CFR 320.4(a)(1)) 

For each of the 20 public interest review factors, the extent of the Corps consideration of 

expected impacts resulting from the use of this NWP is discussed, as well as the reasonably 

foreseeable cumulative adverse effects that are expected to occur. The Corps decision 

process involves consideration of the benefits and detriments that may result from the 

activities authorized by this NWP. 

(a) Conservation: The activities authorized by this NWP may modify the natural resource 

characteristics of the project area. Coal remining activities, in addition to any required 

compensatory mitigation, will result in the restoration, enhancement, establishment, or 

preservation of aquatic habitats that will offset losses of conservation values. The adverse 

effects of activities authorized by this NWP on conservation will be minor. 
16 

(b) Economics: Coal remining activities will have positive impacts on local economies. 

These activities will generate jobs and revenue for local contractors as well as revenue to 

building supply companies that sell construction materials. The sale of coal extracted by 

these activities will generate revenue for mining companies. The energy provided by coalburning power plants will provide power for businesses, including manufacturing industries, 

as well as residences and recreational facilities. Activities authorized by this NWP will also 

benefit the community by improving the local economic base, which is affected by 

employment, tax revenues, community services, and property values. 

(c) Aesthetics: Coal remining activities will alter the visual character of some waters of the 

United States. The extent and perception of these changes will vary, depending on the size 

and configuration of the remining operations and any associated fills, the nature of the 

surrounding area, and the public uses of the area. Activities authorized by this NWP can 

also modify other aesthetic characteristics, such as air quality and the amount of noise. The 

increased human use of the project area and surrounding land will also alter local aesthetic 

values. 

(d) General environmental concerns: Activities authorized by this NWP will affect general 

environmental concerns, such as water, air, noise, and land pollution. The authorized work 

will also affect the physical, chemical, and biological characteristics of the environment. 

The adverse effects of the activities authorized by this NWP on general environmental 

concerns will be minor. Adverse effects to the chemical composition of the aquatic 

environment will be controlled by general condition 6, which states that the material used 

for construction must be free from toxic pollutants in toxic amounts. General condition 22 

requires mitigation to minimize adverse effects to the aquatic environment through 

avoidance and minimization at the project site. Compensatory mitigation required by 

district engineers, as well as reclamation activities, will ensure that the net adverse effects 

on the aquatic environment are minimal. Specific environmental concerns are addressed in 

other sections of this document. 

(e) Wetlands: Coal remining activities may result in the destruction of wetlands, while 

reclamation activities may result in the restoration, enhancement, or establishment of 

wetlands. In many cases, affected wetlands will be permanently filled, especially where 

rocks and soil from mining operations are deposited, resulting in the permanent loss of 

aquatic resource functions and values. Wetlands may also be converted to other uses and 

habitat types. Some wetlands may be temporarily impacted by the work through the use of 

temporary staging areas and access roads. These wetlands will be restored, unless the 

district engineer authorizes another use for the area, but the plant community may be 

different, especially if the site was originally forested. Compensatory mitigation may be 

required to offset the loss of wetlands and ensure that the adverse effects to the aquatic 

environment are minimal. Reclamation activities may also result in the restoration of 

wetlands. 

Wetlands provide habitat, including foraging, nesting, spawning, rearing, and resting sites 

for aquatic and terrestrial species. The destruction of wetlands may alter natural drainage 

patterns. Wetlands reduce erosion by stabilizing the substrate. Wetlands also act as storage 
17 

areas for stormwater and flood waters. Wetlands may act as groundwater discharge or 

recharge areas. The loss of wetland vegetation will adversely affect water quality because 

these plants trap sediments, pollutants, and nutrients and transform chemical compounds. 

Wetland vegetation also provides habitat for microorganisms that remove nutrients and 

pollutants from water. Wetlands, through the accumulation of organic matter, act as sinks 

for some nutrients and other chemical compounds, reducing the amounts of these substances 

in the water. 

General condition 22 requires avoidance and minimization of impacts to waters of the 

United States, including wetlands, at the project site. Compensatory mitigation required by 

district engineers will ensure that the net adverse effects on the aquatic environment are 

minimal. General condition 21 prohibits the use of this NWP to discharge dredged or fill 

material in designated critical resource waters and adjacent wetlands, which may include 

high value wetlands. Division engineers can regionally condition this NWP to restrict or 

prohibit the use of this NWP in high value wetlands. District engineers will also exercise 

discretionary authority to require an individual permit if the wetlands to be filled are high 

value and the work will result in more than minimal adverse effects on the aquatic 

environment. District engineers can also add case-specific special conditions to the NWP 

authorization to provide protection to wetlands or require compensatory mitigation to offset 

losses of wetlands. 

(f) Historic properties: General condition 20 states that in cases where the district engineer 

determines that the activity may affect properties listed, or eligible for listing, in the 

National Register of Historic Places, the activity is not authorized, until the requirements of 

Section 106 of the National Historic Preservation Act have been satisfied. Reviews required 

under the Surface Mining Control and Reclamation Act will also help ensure compliance 

with Section 106 of the National Historic Preservation Act. 

(g) Fish and wildlife values: This NWP authorizes activities in waters of the United States, 

including streams and wetlands, which provide habitat to many species of fish and wildlife. 

Activities authorized by this NWP may alter the habitat characteristics of streams and 

wetlands, decreasing the quantity and quality of fish and wildlife habitat. Wetland and 

riparian vegetation provides food and habitat for many species, including foraging areas, 

resting areas, corridors for wildlife movement, and nesting and breeding grounds. Open 

waters provide habitat for fish and other aquatic organisms. Woody riparian vegetation 

shades streams, which reduces water temperature fluctuations and provides habitat for fish 

and other aquatic animals. Riparian vegetation provides organic matter that is consumed by 

fish and aquatic invertebrates. Woody riparian vegetation creates habitat diversity in 

streams when trees and large shrubs fall into the channel, forming snags that provide habitat 

and shade for fish. The morphology of a stream channel may be altered by activities 

authorized by this NWP, which can affect fish populations. However, pre-construction 

notification is required for all activities authorized by this NWP, which provides the district 

engineer with an opportunity to review the proposed work and assess potential impacts on 

fish and wildlife values and ensure that the authorized activity results in minimal adverse 

effects on the aquatic environment. The district engineer must verify in writing that the 

proposed work will result in minimal adverse effects on the aquatic environment, 
18 

individually and cumulatively. Compensatory mitigation required by district engineers to 

restore, enhance, establish, and/or preserve wetlands and other aquatic habitats will offset 

losses of waters of the United States, and provide fish and wildlife habitat. The 

establishment and maintenance of riparian areas next to open and flowing waters may also 

be required as compensatory mitigation. These methods of compensatory mitigation will 

provide fish and wildlife habitat values. Reclamation of reclaimed mine sites, abandoned 

mine land areas, or lands under bond forfeiture contracts will also help provide fish and 

wildlife values. 

General condition 2 will reduce adverse effects to fish and other aquatic species by 

prohibiting activities that substantially disrupt the necessary life cycle movements of 

indigenous aquatic species, unless the primary purpose of the activity is to impound water. 

Compliance with general conditions 3 and 5 will ensure that the authorized work has 

minimal adverse effects on spawning areas and shellfish beds, respectively. The authorized 

work cannot have more than minimal adverse effects on breeding areas for migratory birds, 

due to the requirements of general condition 4. 

Compliance with the Bald and Golden Eagle Protection Act (16 U.S.C. 668(a)-(d)), the 

Migratory Bird Treaty Act (16 U.S.C. 703; 16 U.S.C. 712), and the Marine Mammal 

Protection Act (16 U.S.C. 1361 et seq.), including any requirements to obtain take permits, 

is the responsibility of the project proponent for a particular NWP activity. 

Consultation pursuant to the essential fish habitat provisions of the Magnuson-Stevens 

Fishery Conservation and Management Act will occur as necessary for proposed NWP 

activities that may adversely affect essential fish habitat. Consultation may occur on a caseby-case or programmatic basis. Division and district engineers can impose regional and 

special conditions to ensure that activities authorized by this NWP will result in minimal 

adverse effects on essential fish habitat. 

(h) Flood hazards: The activities authorized by this NWP may affect the flood-holding 

capacity of 100-year floodplains, including surface water flow velocities. Changes in the 

flood-holding capacity of 100-year floodplains may impact human health, safety, and 

welfare. To minimize these adverse effects, general condition 10 requires the activity to 

comply with applicable FEMA-approved state or local floodplain management 

requirements. The requirements of general condition 10 will help ensure that the activities 

authorized by this NWP will have minimal adverse effects on flood hazards. Compliance 

with general condition 9 will also reduce flood hazards. This general condition requires the 

permittee to maintain, to the maximum extent practicable, the pre-construction course, 

condition, capacity, and location of open waters, except under certain circumstances. Much 

of the land area within 100-year floodplains is upland, and outside of the Corps scope of 

review. 

(i) Floodplain values: Activities authorized by this NWP may affect the flood-holding 

capacity of floodplains, as well as other floodplain values. The fish and wildlife habitat 

values of floodplains will be adversely affected by activities authorized by this NWP, by 

modifying or eliminating areas used for nesting, foraging, resting, and reproduction. The 
19 

water quality functions of floodplains may also be adversely affected by these activities. 

Modification of the floodplain may also adversely affect other hydrological processes, such 

as groundwater recharge. All activities authorized by this NWP require pre-construction 

notification, so that district engineers can review the proposed work on a case-by-case basis 

to ensure that those activities result in minimal adverse effects on the aquatic environment. 

Floodplain values may be restored or established through the reclamation activities 

authorized by this NWP. 

Compensatory mitigation may be required for activities authorized by this NWP, which will 

offset losses of waters of the United States and provide water quality functions and wildlife 

habitat. General condition 22 requires avoidance and minimization of impacts to waters of 

the United States to the maximum extent practicable at the project site, which will reduce 

losses of floodplain values. The mitigation requirements of general condition 22 will help 

ensure that the adverse effects of these activities on floodplain values are minimal. 

Compliance with general condition 9 will also ensure that activities in 100-year floodplains 

will not cause more than minimal adverse effects on flood storage and conveyance. 

(j) Land use: Activities authorized by this NWP will change land use. The mining of coal 

and the deposition of rock and soil from the mining operation will change the character of 

the land. Reclamation required for activities authorized by this NWP will restore natural 

land uses. Since the primary responsibility for land use decisions is held by state, local, and 

Tribal governments, the Corps scope of review is limited to significant issues of overriding 

national importance, such as navigation and water quality (see 33 CFR 320.4(j)(2)). 

(k) Navigation: Activities authorized by this NWP must comply with general condition 1, 

which states that no activity may cause more than minimal adverse effects on navigation. 

This NWP requires pre-construction notification for all activities, which will allow district 

engineers to review the proposed work and determine whether adverse effects on navigation 

will be minimal. 

(l) Shore erosion and accretion: The activities authorized by this NWP will have minor 

direct effects on shore erosion and accretion processes, since coal remining activities are 

usually located in inland areas. NWP 13, regional general permits, or individual permits 

may be used to authorize bank stabilization projects associated with coal remining activities, 

which may affect shore erosion and accretion. 

(m) Recreation: Activities authorized by this NWP may change the recreational uses of the 

area. Certain recreational activities, such as bird watching, hunting, and fishing may no 

longer be available in the area during remining and reclamation activities, but these 

activities may resume after the mined area has been successfully reclaimed. 

(n) Water supply and conservation: Activities authorized by this NWP may adversely affect 

both surface water and groundwater supplies. Surface coal mining operations may increase 

the demand for potable water in the region. The deposition of rock and soil from surface 

coal mining operations may alter groundwater recharge areas, which could decrease 

replenishment of groundwater supplies. Surface water flow patterns may be affected by the 
20 

authorized work. Activities authorized by this NWP can also affect the quality of water 

supplies by adding pollutants and toxic chemicals to surface waters and groundwater, but 

many causes of water pollution, such as discharges regulated under Section 402 of the Clean 

Water Act, are outside the Corps scope of review. The quantity and quality of local water 

supplies may be enhanced through the construction of water treatment facilities. Division 

and district engineers can prohibit the use of this NWP in watersheds for public water 

supplies, if it is in the public interest to do so. General condition 7 prohibits discharges in 

the vicinity of public water supply intakes. Compensatory mitigation may be required for 

activities authorized by this NWP, which will help maintain or improve the quality of 

surface waters. Reclamation of coal remining sites, abandoned mine land areas, or lands 

under bond forfeiture contracts will also help improve surface water quality. 

(o) Water quality: Coal remining activities in wetlands and open waters will have adverse 

effects on water quality. These activities can cause increases in nutrients, sediments, and 

pollutants in the water. The loss of wetland and riparian vegetation will adversely affect 

water quality because these plants trap sediments, pollutants, and nutrients and transform 

chemical compounds. Wetland and riparian vegetation also provides habitat for 

microorganisms that remove nutrients and pollutants from water. Wetlands, through the 

accumulation of organic matter, act as sinks for some nutrients and other chemical 

compounds, reducing the amounts of these substances in the water column. Wetlands and 

riparian areas also decrease the velocity of flood waters, removing suspended sediments 

from the water column and reducing turbidity. Riparian vegetation also serves an important 

role in the water quality of streams by shading the water from the intense heat of the sun. 

Compensatory mitigation may be required for activities authorized by this NWP, to ensure 

that the work does not have more than minimal adverse effects on the aquatic environment, 

including water quality. Wetlands and riparian areas restored, established, enhanced, or 

preserved as compensatory mitigation, as well as the reclamation of reclaimed mine sites, 

abandoned mine land areas, or lands under bond forfeiture contracts, will provide local 

water quality benefits. 

During coal remining and reclamation activities, small amounts of oil and grease from 

mining and construction equipment may be discharged into the waterway. The frequency 

and concentration of these discharges are not expected to have more than minimal adverse 

effects on overall water quality. 

This NWP requires a section 401 water quality certification, because it authorizes discharges 

of dredged or fill material into waters of the United States. Most water quality concerns are 

addressed by the state or Tribal section 401 agency. The Office of Surface Mining or the 

state mining agency may require the permittee to implement water quality management 

measures that minimize the degradation of the downstream aquatic environment, including 

water quality. The establishment and maintenance of riparian areas may be required for 

activities authorized by the NWP, if there are streams or other open waters on the project 

site. The riparian areas will protect downstream water quality and enhance the aquatic 

habitat. 

(p) Energy needs: During the remining and reclamation operations, the activities authorized 
21 

by this NWP may increase energy consumption in the area, especially electricity, natural 

gas, and petroleum products. The coal extracted from reclaimed mine sites, abandoned mine 

land areas, or lands under bond forfeiture contracts will be used to fuel power plants, 

thereby providing energy to people. Existing infrastructure may have to be expanded to 

distribute the electricity generated by power plants to cities and other areas. 

(q) Safety: The activities authorized by this NWP will be subject to Federal, state, and local 

safety laws and regulations. Therefore, this NWP will not adversely affect the safety of the 

project area. 

(r) Food and fiber production: Activities authorized by this NWP may adversely affect food 

and fiber production, especially where rock and soil from surface coal mining operations are 

deposited in farm fields. The use of farmland for the disposal of mined material and wastes 

reduces the amount of available agricultural land in the nation, unless that land is replaced 

by converting other land, such as forest, to agricultural land. The loss of farmland is more 

appropriately addressed through the land use planning and zoning authority held by state 

and local governments. 

(s) Mineral needs: Activities authorized by this NWP may increase demand for aggregates 

and stone, which could be used for mining activities. Activities authorized by this NWP 

may increase the demand for other building materials, such as steel, aluminum, and copper, 

which are made from mineral ores. 

(t) Considerations of property ownership: The NWP complies with 33 CFR 320.4(g), which 

states that an inherent aspect of property ownership is a right to reasonable private use. The 

NWP provides expedited DA authorization for activities in waters of the United States for 

surface coal mining and reclamation operations, provided the activity complies with the 

terms and conditions of the NWP and results in minimal adverse effects on the aquatic 

environment. 

5.2 Additional Public Interest Review Factors (33 CFR 320.4(a)(2)) 

5.2.1 Relative extent of the public and private need for the proposed structure or work

This NWP authorizes discharges of dredged or fill material into waters of the United States 

for coal remining and reclamation activities that have minimal adverse effects on the aquatic 

environment, individually and cumulatively. These activities satisfy public and private 

needs for energy. The need for this NWP is based upon the large number of these activities 

that occur annually with minimal adverse effects on the aquatic environment. 

5.2.2 Where there are unresolved conflicts as to resource use, the practicability of using 

reasonable alternative locations and methods to accomplish the objective of the 

proposed structure or work

Most situations in which there are unresolved conflicts concerning resource use arise when 

environmentally sensitive areas are involved (e.g., special aquatic sites, including wetlands) 
22 

or where there are competing uses of a resource. The nature and scope of the activity, when 

planned and constructed in accordance with the terms and conditions of this NWP, reduce 

the likelihood of such conflict. In the event that there is a conflict, the NWP contains 

provisions that are capable of resolving the matter (see Section 1.2 of this document). 

General condition 22 requires permittees to avoid and minimize adverse effects to waters of 

the United States to the maximum extent practicable on the project site. Consideration of 

off-site alternative locations is not required for activities that are authorized by general 

permits. General permits authorize activities that have minimal individual and cumulative 

adverse effects on the aquatic environment and overall public interest. District engineers 

will exercise discretionary authority and require an individual permit if the proposed work 

will result in more than minimal adverse environmental effects on the project site. The 

consideration of off-site alternatives can be required during the individual permit process. 

5.2.3 The extent and permanence of the beneficial and/or detrimental effects which the 

proposed structure or work is likely to have on the public and private uses to which 

the area is suited

The nature and scope of the work authorized by the NWP will most likely restrict the extent 

of the beneficial and detrimental effects to the area immediately surrounding the surface 

coal mining and reclamation operation. Activities authorized by this NWP will have 

minimal adverse effects on the aquatic environment. 

The terms, conditions, and provisions of the NWP were developed to ensure that individual 

and cumulative adverse environmental effects are minimal. Specifically, NWPs do not 

obviate the need for the permittee to obtain other Federal, state, or local authorizations 

required by law. The NWPs do not grant any property rights or exclusive privileges (see 33 

CFR 330.4(b) for further information). Additional conditions, limitations, restrictions, and 

provisions for discretionary authority, as well as the ability to add activity-specific or 

regional conditions to this NWP, will provide further safeguards to the aquatic environment 

and the overall public interest. There are also provisions to allow suspension, modification, 

or revocation of the NWP. 
23 

6.0 Clean Water Act Section 404(b)(1) Guidelines Analysis 

The 404(b)(1) compliance criteria for general permits are provided at 40 CFR 230.7. 

6.1 Evaluation Process (40 CFR 230.7(b)) 

6.1.1 Alternatives (40 CFR 230.10(a))

General condition 22 requires permittees to avoid and minimize discharges of dredged or fill 

material into waters of the United States to the maximum extent practicable on the project 

site. The consideration of off-site alternatives is not directly applicable to general permits. 

6.1.2 Prohibitions (40 CFR 230.10(b))

This NWP authorizes discharges of dredged or fill material into waters of the United States, 

which require water quality certification. Water quality certification requirements will be 

met in accordance with the procedures at 33 CFR 330.4(c). 

No toxic discharges will be authorized by this NWP. General condition 6 states that the 

material must be free from toxic pollutants in toxic amounts. 

This NWP does not authorize activities that jeopardize the continued existence of any listed 

threatened or endangered species or result in the destruction or adverse modification of 

critical habitat. Reviews of pre-construction notifications, regional conditions, and local 

operating procedures for endangered species will ensure compliance with the Endangered 

Species Act. Refer to general condition 19 and to 33 CFR 330.4(f) for information and 

procedures. 

This NWP will not authorize the violation of any requirement to protect any marine 

sanctuary. Refer to section 6.2.3(j)(1) of this document for further information. 

6.1.3 Findings of Significant Degradation (40 CFR 230.10(c))

Potential impact analysis (Subparts C through F): The potential impact analysis specified in 

Subparts C through F is discussed in section 6.2.3 of this document. Mitigation required by 

the district engineer will ensure that the adverse effects on the aquatic environment are 

minimal. 

Evaluation and testing (Subpart G): Because the terms and conditions of the NWP specify 

the types of discharges that are authorized, as well as those that are prohibited, individual 

evaluation and testing for the presence of contaminants will normally not be required. If a 

situation warrants, provisions of the NWP allow division or district engineers to further 

specify authorized or prohibited discharges and/or require testing. 

Based upon Subparts B and G, after consideration of Subparts C through F, the discharges 

authorized by this NWP will not cause or contribute to significant degradation of waters of 
24 

the United States. 

6.1.4 Factual determinations (40 CFR 230.11)

The factual determinations required in 40 CFR 230.11 are discussed in section 6.2.3 of this 

document. 

6.1.5 Appropriate and practicable steps to minimize potential adverse impacts (40 CFR 

230.10(d))

As demonstrated by the information in this document, as well as the terms, conditions, and 

provisions of this NWP, actions to minimize adverse effects (Subpart H) have been 

thoroughly considered and incorporated into the NWP. General condition 22 requires 

permittees to avoid and minimize discharges of dredged or fill material into waters of the 

United States to the maximum extent practicable on the project site. Compensatory 

mitigation required by the district engineer will ensure that the net adverse effects on the 

aquatic environment are minimal. 

6.2 Evaluation Process (40 CFR 230.7(b)) 

6.2.1 Description of permitted activities (40 CFR 230.7(b)(2)) 

As indicated by the text of this NWP in section 1.0 of this document, and the discussion of 

potential impacts in section 4.0, the activities authorized by this NWP are sufficiently 

similar in nature and environmental impact to warrant authorization under a single general 

permit. Specifically, the purpose of the NWP is to authorize discharges of dredged or fill 

material for surface coal mining and reclamation operations that are either: (1) authorized by 

the Office of Surface Mining or states with approved programs under Title V of the Surface 

Mining Control and Reclamation Act of 1977, or (2) being processed under integrated 

permit processing procedures. The ratio of previously mined areas to new coal removal 

areas must be greater than 60 percent. The nature and scope of the impacts are controlled by 

the terms and conditions of the NWP. 

The activities authorized by this NWP are sufficiently similar in nature and environmental 

impact to warrant authorization by a general permit. The terms of the NWP authorize a 

specific category of activity (i.e., discharges of dredged or fill material for coal remining and 

reclamation activities) in a specific category of waters (i.e., non-tidal waters of the United 

States). The restrictions imposed by the terms and conditions of this NWP will result in the 

authorization of activities that have similar impacts on the aquatic environment, namely the 

restoration, establishment, enhancement, or modification of aquatic habitats as a result of 

reclamation operations in these previously mined areas. Other impacts to the aquatic 

environment will result from the replacement or modification of aquatic habitats, with fills 

associated with coal remining activities or the mining new areas, such as permanent stream 

diversions, impoundments, and road crossings. 

If a situation arises in which the activity requires further review, or is more appropriately 
25 

reviewed under the individual permit process, provisions of the NWPs allow division and/or 

district engineers to take such action. 

6.2.2 Cumulative effects (40 CFR 230.7(b)(3))

The 404(b)(1) Guidelines at 40 CFR 230.11(a) define cumulative impacts as “...the changes 

in an aquatic ecosystem that are attributable to the collective effect of a number of 

individual discharges of dredged or fill material.” If a situation arises in which cumulative 

effects are likely to be more than minimal and the proposed activity requires further review, 

or is more appropriately reviewed under the individual permit process, provisions of the 

NWPs allow division and/or district engineers to take such action. 

Based on reported use of this NWP during the period of August 1, 2009, to July 31, 2010, 

the Corps estimates that this NWP will be used approximately 12 times per year on a 

national basis, resulting in impacts to approximately 5 acres of waters of the United States, 

including jurisdictional wetlands. The Corps estimates that approximately 21 acres of 

compensatory mitigation will be required to offset these impacts. The demand for these 

types of activities could increase or decrease over the five-year duration of this NWP. 

Using the current trend, approximately 60 activities could be authorized over a five year 

period until this NWP expires, resulting in impacts to approximately 25 acres of waters of 

the United States, including jurisdictional wetlands. Approximately 105 acres of 

compensatory mitigation would be required to offset those impacts. Compensatory 

mitigation is the restoration (re-establishment or rehabilitation), establishment, 

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 (see 33 CFR 332.2). Stream 

rehabilitation and enhancement projects, including the restoration and preservation of 

riparian areas, provide riverine functions and services (Allan and Castillo 2007 for rivers 

and streams, NRC (2002) for riparian areas). Wetland restoration, enhancement, and 

establishment projects can provide wetland functions and services, as long as the wetland 

compensatory mitigation project is placed in an appropriate landscape position, has 

appropriate hydrology for the desired wetland type, and watershed condition will support the 

desired wetland type (NRC 2001). The required compensatory mitigation will attenuate 

cumulative impacts on the Nation’s aquatic resources by providing aquatic resource 

functions and services, so that the net effects on the aquatic environment resulting from the 

activities authorized by this NWP will be minimal. The Corps expects that the convenience 

and time savings associated with the use of this NWP will encourage applicants to design 

their projects within the scope of the NWP rather than request individual permits for 

projects which could result in greater adverse impacts to the aquatic environment. 

6.2.3 Section 404(b)(1) Guidelines Impact Analysis, Subparts C through F

(a) Substrate: Discharges of dredged or fill material into non-tidal waters of the United 

States will alter the substrate of those waters, usually replacing the aquatic area with dry 

land, and changing the physical, chemical, and biological characteristics of the substrate. 

The original substrate will be removed or covered by other material, such as rock, soil, 
26 

gravel, etc. Temporary fills may be placed upon the substrate, but must be removed upon 

completion of the work (see general condition 13). Higher rates of erosion may result 

during construction, but general condition 12 requires the use of appropriate measures to 

control soil erosion and sediment. 

(b) Suspended particulates/turbidity: Depending on the method of construction, soil erosion 

and sediment control measures, equipment, composition of the bottom substrate, and wind 

and current conditions during construction, fill material placed in open waters will 

temporarily increase water turbidity. Pre-construction notification is required for all 

discharges, which will allow the district engineer to review each activity and ensure that 

adverse effects on the aquatic environment are minimal. Particulates will be resuspended in 

the water column during removal of temporary fills. The turbidity plume will normally be 

limited to the immediate vicinity of the disturbance and should dissipate shortly after each 

phase of the construction activity. General condition 12 requires the permittee to stabilize 

exposed soils and other fills, which will reduce turbidity. In many localities, contractors are 

required to develop and implement sediment and erosion control plans to minimize the entry 

of soil into the aquatic environment. NWP activities cannot create turbidity plumes that 

smother important spawning areas downstream (see general condition 3). 

(c) Water: Coal remining activities may affect some characteristics of water, such as water 

clarity, chemical content, dissolved gas concentrations, pH, and temperature. These 

activities may change the chemical and physical characteristics of the waterbody by 

introducing suspended or dissolved chemical compounds or sediments into the water. 

Changes in water quality can affect the species and quantities of organisms inhabiting the 

aquatic area. Water quality certification is required for activities authorized by this NWP 

that result in discharges of dredged or fill material into waters of the United States, which 

will ensure that the work does not violate applicable water quality standards. Permittees 

may be required to implement water quality management measures to ensure that the 

authorized work does not result in more than minimal degradation of water quality. 

Impoundments may be required to prevent or reduce the input of harmful chemical 

compounds into the waterbody. The district engineer may require the establishment and 

maintenance of riparian areas next to open waters, such as streams. Riparian areas help 

improve or maintain water quality, by removing nutrients, moderating water temperature 

changes, and trapping sediments. Reclamation activities involving the restoration, 

enhancement, or establishment of aquatic and terrestrial habitats will help improve water 

quality. 

(d) Current patterns and water circulation: Activities authorized by this NWP may adversely 

affect the movement of water in the aquatic environment. All activities authorized by this 

NWP require pre-construction notification to the district engineer, which will help ensure 

that adverse effects to current patterns and water circulation are minimal. Road crossings 

within a surface coal mining operation may alter water flow patterns and circulation. 

General condition 9 requires the authorized activity to be designed to withstand expected 

high flows and to maintain the course, condition, capacity, and location of open waters to 

the maximum extent practicable. General condition 10 requires activities to comply with 

applicable FEMA-approved state or local floodplain management requirements, which will 
27 

reduce adverse effects to surface water flows. 

(e) Normal water level fluctuations: The activities authorized by this NWP will not 

adversely affect normal patterns of water level fluctuations due to tides and flooding. This 

NWP does not authorize activities in tidal waters, since it authorizes only coal remining 

activities in non-tidal waters of the United States. To ensure that the NWP does not 

authorize activities that adversely affect normal flooding patterns, general condition 10 

requires NWP activities to comply with applicable FEMA-approved state or local floodplain 

management requirements. General condition 9 requires the permittee to maintain the preconstruction course, condition, capacity, and location of open waters, to the maximum 

extent practicable. 

(f) Salinity gradients: The activities authorized by this NWP will have negligible adverse 

effects on salinity gradients, since it does not authorize activities in tidal waters. 

(g) Threatened and endangered species: The Corps believes that the procedures currently in 

place result in proper coordination under Section 7 of the Endangered Species Act (ESA) 

and ensure that activities authorized by this NWP will not jeopardize the continued 

existence or any listed threatened and endangered species or result in the destruction or 

adverse modification of critical habitat. The Corps also believes that current local 

procedures in Corps districts are effective in ensuring compliance with ESA. 

Under general condition 19, 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. 

Each activity authorized by an NWP is subject to general condition 19, which states that 

“[n]o 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.” In addition, general condition 19 explicitly states that the NWP does not 

authorize the taking of threatened or endangered species, which will ensure that permittees 

do not mistake the NWP authorization as a Federal authorization to take threatened or 

endangered species. General condition 19 also requires non-federal permittees to 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. This 

general condition also states that, in such cases, non-federal permittees 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. 

Under the current Corps regulations (33 CFR 325.2(b)(5)), the district engineer must review 

all permit applications for potential impacts on threatened and endangered species or critical 

habitat. For the NWP program, this review occurs when the district engineer evaluates the 

pre-construction notification or request for verification. Based on the evaluation of all 

available information, the district engineer will initiate consultation with the U.S. Fish and 
28 

Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS), as appropriate, if 

he or she determines that the regulated activity may affect any threatened and endangered 

species or critical habitat. Consultation may occur during the NWP authorization process or 

the district engineer may exercise discretionary authority to require an individual permit for 

the proposed activity and initiate consultation through the individual permit process. If ESA 

consultation is conducted during the NWP authorization process without the district 

engineer exercising discretionary authority, then the applicant will be notified that he or she 

cannot proceed with the proposed activity until ESA consultation is complete. If the district 

engineer determines that the activity will have no effect on any threatened and endangered 

species or critical habitat, then the district engineer will notify the applicant that he or she 

may proceed under the NWP authorization. 

 

Corps districts have, in most cases, established informal or formal procedures with local 

offices of the USFWS and NMFS, through which the agencies share information regarding 

threatened and endangered species and their critical habitat. This information helps district 

engineers determine if a proposed activity may affect endangered species or their critical 

habitat and, if necessary, initiate consultation. Corps districts may utilize maps or databases 

that identify locations of populations of threatened and endangered species and their critical 

habitat. Where necessary, regional conditions are added to NWPs to require notification for 

activities that occur in known locations of threatened and endangered species or critical 

habitat. For activities that require agency coordination during the pre-construction 

notification process, the USFWS and NMFS will review the proposed work for potential 

impacts to threatened and endangered species and their critical habitat. Any information 

provided by local maps and databases and any comments received during the preconstruction notification review process will be used by the district engineer to make a “no 

effect” or “may affect” decision. 

Based on the safeguards discussed above, especially general condition 19 and the NWP 

regulations at 33 CFR 330.5(f), the Corps has determined that the activities authorized by 

this NWP will not jeopardize the continued existence of any listed threatened or endangered 

species or result in the destruction or adverse modification of designated critical habitat. 

Although the Corps continues to believe that these procedures ensure compliance with ESA, 

the Corps has taken some steps to provide further assurance. Corps district offices have met 

with local representatives of the USFWS and NMFS to establish or modify existing 

procedures, where necessary, to ensure that the Corps has the latest information regarding 

the existence and location of any threatened or endangered species or their critical habitat. 

Corps districts can also establish, through local procedures or other means, additional 

safeguards that ensure compliance with ESA. Through formal consultation under Section 7 

of the Endangered Species Act, or through other coordination with the USFWS and/or the 

NMFS, as appropriate, the Corps will establish procedures to ensure that the NWP will not 

jeopardize any threatened and endangered species or result in the destruction or adverse 

modification of designated critical habitat. Such procedures may result in the development 

of regional conditions added to the NWP by the division engineer, or in special conditions to 

be added to an NWP authorization by the district engineer. 

(h) Fish, crustaceans, molluscs, and other aquatic organisms in the food web. All activities 
29 

authorized by this NWP, including discharges into open waters, require notification to the 

district engineer, which will allow review of each activity in open waters to ensure that 

adverse effects to fish and other aquatic organisms in the food web are minimal. Fish and 

other motile animals will avoid the project site during construction. Sessile or slow-moving 

animals in the path of discharges, equipment, and building materials will be destroyed. 

Some aquatic animals may be smothered by the placement of fill material. Motile animals 

will return to those areas that are temporarily impacted by the work and restored or allowed 

to revert back to pre-construction conditions. Aquatic animals will not return to sites of 

permanent fills. Benthic and sessile animals are expected to recolonize sites temporarily 

impacted by the work, after those areas are restored. Activities that alter the riparian zone, 

especially floodplains, may adversely affect populations of fish and other aquatic animals, 

by altering stream flow, flooding patterns, and surface and groundwater hydrology. Some 

species of fish spawn on floodplains, which could be prevented if the development involves 

clearing or filling the floodplain. Coal remining activities conducted in the vicinity of 

streams may alter habitat features by increasing surface water flow velocities, which can 

increase erosion and reduce the amount of habitat for aquatic organisms and destroy 

spawning areas. Reclamation activities authorized by this NWP will improve habitat for 

fish, crustaceans, molluscs, and other aquatic organisms. 

Division and district engineers can place conditions on this NWP to prohibit discharges 

during important stages of the life cycles of certain aquatic organisms. Such time of year 

restrictions can prevent adverse effects to these aquatic organisms during reproduction and 

development periods. General conditions 3 and 5 address protection of spawning areas and 

shellfish beds, respectively. General condition 3 states that activities in spawning areas 

during spawning seasons must be avoided to the maximum extent practicable. In addition, 

general condition 3 also prohibits activities that result in the physical destruction of 

important spawning areas. General condition 5 prohibits activities in areas of concentrated 

shellfish populations. General condition 9 requires the maintenance of pre-construction 

course, condition, capacity, and location of open waters to the maximum extent practicable, 

which will help minimize adverse impacts to fish, shellfish, and other aquatic organisms in 

the food web. 

(i) Other wildlife: Activities authorized by this NWP may result in adverse effects on other 

wildlife associated with aquatic ecosystems, such as resident and transient mammals, birds, 

reptiles, and amphibians, through the destruction of aquatic habitat, including breeding and 

nesting areas, escape cover, travel corridors, and preferred food sources. This NWP does 

not authorize activities that jeopardize the continued existence of Federally-listed 

endangered and threatened species or result in the destruction or adverse modification of 

critical habitat. Compensatory mitigation, including the establishment and maintenance of 

riparian areas next to open waters, may be required for activities authorized by this NWP, 

which will help offset losses of aquatic habitat for wildlife. General condition 4 states that 

activities in breeding areas for migratory birds must be avoided to the maximum extent 

practicable. 

(j) Special aquatic sites: The potential impacts to specific special aquatic sites are discussed 

below: 
30 

(1) Sanctuaries and refuges: The activities authorized by this NWP will have 

minimal adverse effects on waters of the United States within sanctuaries or refuges 

designated by Federal or state laws or local ordinances. General condition 21 prohibits the 

use of this NWP to discharge dredged or fill material in NOAA-managed marine sanctuaries 

and marine monuments, National Estuarine Research Reserves, and state-designated 

outstanding national resource waters. District engineers will exercise discretionary authority 

and require individual permits for specific projects in waters of the United States in 

sanctuaries and refuges if those activities will result in more than minimal adverse effects on 

the aquatic environment. 

(2) Wetlands: The activities authorized by this NWP will have minimal adverse 

effects on wetlands. District engineers will review pre-construction notifications for all 

activities to ensure that the adverse effects on the aquatic environment are minimal. 

Division engineers can regionally condition this NWP to restrict or prohibit its use in certain 

high value wetlands. See paragraph (e) of section 5.1 for a more detailed discussion of 

impacts to wetlands. 

(3) Mud flats: The activities authorized by this NWP will have little or no adverse 

effects on mud flats, since the NWP does not authorize activities in tidal waters. District 

engineers will review pre-construction notifications for all activities to ensure that the 

adverse effects on the aquatic environment are minimal. Division engineers can regionally 

condition this NWP to restrict or prohibit its use in certain waterbodies. 

(4) Vegetated shallows: The activities authorized by this NWP will have minimal 

adverse effects on vegetated shallows. District engineers will review pre-construction 

notifications for all activities to ensure that the adverse effects on the aquatic environment 

are minimal. Division engineers can regionally condition this NWP to restrict or prohibit its 

use in vegetated shallows. 

(5) Coral reefs: The activities authorized by this NWP will have no adverse effects 

on coral reefs, since it does not authorize activities in tidal waters. 

(6) Riffle and pool complexes: Activities in riffle and pool complexes may be 

authorized by this NWP, but district engineers will review all proposed activities to 

determine if those activities will result in minimal adverse effects on the aquatic 

environment. If the riffle and pool complexes are high value and the proposed work will 

result in more than minimal adverse effects on the aquatic environment, the district engineer 

will exercise discretionary authority to require the project proponent to obtain an individual 

permit. 

(k) Municipal and private water supplies: See paragraph (n) of section 5.1 for a discussion 

of potential impacts to water supplies. 

(l) Recreational and commercial fisheries, including essential fish habitat: The activities 

authorized by this NWP may adversely affect waters of the United States that act as habitat 
31 

for populations of economically important fish and shellfish species. Division and district 

engineers can condition this NWP to prohibit discharges during important life cycle stages, 

such as spawning or development periods, of economically valuable fish and shellfish. All 

discharges into open waters require notification to the district engineer, which will allow 

review of each activity in open waters to ensure that adverse effects to economically 

important fish and shellfish are minimal. Compliance with general conditions 3 and 5 will 

ensure that the authorized work does not adversely affect important spawning areas or 

concentrated shellfish populations. As discussed in paragraph (g) of section 5.1, there are 

procedures to help ensure that impacts to essential fish habitat are minimal, individually or 

cumulatively. For example, division and district engineers can impose regional and special 

conditions to ensure that activities authorized by this NWP will result in minimal adverse 

effects on essential fish habitat. 

(m) Water-related recreation: See paragraph (m) of section 5.1 above. 

(n) Aesthetics: See paragraph (c) of section 5.1 above. 

(o) Parks, national and historical monuments, national seashores, wilderness areas, research 

sites, and similar areas: General condition 21 prohibits the use of this NWP to authorize 

discharges of dredged or fill material in designated critical resource waters and adjacent 

wetlands, which may be located in parks, national and historical monuments, national 

seashores, wilderness areas, and research sites. This NWP can be used to authorize activities 

in parks, national and historical monuments, national seashores, wilderness areas, and 

research sites if the manager or caretaker wants to conduct work in waters of the United 

States and those activities result in minimal adverse effects on the aquatic environment. 

Division engineers can regionally condition the NWP to prohibit its use in designated areas, 

such as national wildlife refuges or wilderness areas. 

7.0 Determinations 

7.1 Finding of No Significant Impact 

[To be determined after review of comments received in response to the proposal.] 

7.2 Public Interest Determination 

[To be determined after review of comments received in response to the proposal.] 

7.3 Section 404(b)(1) Guidelines Compliance 

[To be determined after review of comments received in response to the proposal.] 

7.4 Section 176(c) of the Clean Air Act General Conformity Rule Review 

This NWP has been analyzed for conformity applicability pursuant to regulations 
32 

implementing Section 176(c) of the Clean Air Act. It has been determined that the activities 

authorized by this permit will not exceed de minimis levels of direct emissions of a criteria 

pollutant or its precursors and are exempted by 40 CFR 93.153. Any later indirect 

emissions are generally not within the Corps continuing program responsibility and 

generally cannot be practicably controlled by the Corps. For these reasons, a conformity 

determination is not required for this NWP. 

7.5 Compliance with Relevant Executive Orders 

7.5.1 EO 13175, Consultation and Coordination With Indian Tribal Governments

The issuance of this NWP 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. Regional 

conditions or other local NWP modifications may be added to this NWP by division and 

district engineers to protect aquatic resources of interest to Tribes, as part of the Corps 

responsibility to protect trust resources. 

7.5.2 EO 11988, Floodplain Management

Compliance with NWP general condition 10, fills in 100-year floodplains, will minimize 

impacts of potential flooding on human health, safety, and welfare, as well as the natural and 

beneficial values of floodplains. 

7.5.3 EO 12898, Environmental Justice

In accordance with Title III of the Civil Right Act of 1964 and Executive Order 12898, it 

has been determined that the issuance of this NWP would not directly or through contractual 

or other arrangements, use criteria, methods, or practices that discriminate on the basis of 

race, color, or national origin nor would it have a disproportionate effect on minority or lowincome communities. 

7.5.4 EO 13112, Invasive Species

The issuance of this NWP will not cause or promote the introduction or spread of invasive 

species in the United States. The district engineer may add special conditions to an NWP 

authorization to require the permittee to control the introduction or spread of invasive 

species at the project site. 

7.5.5 EO 13212 and 13302, Actions to Expedite Energy-Related Projects

The issuance of this NWP will support the policy established in these Executive Orders, by 

providing an efficient form of DA authorization for minor activities associated with energyrelated projects. 
33 
34 

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Ecosystems. Annual Review of Ecology, Evolution, and Systematics. 35:257–284. 

Allan, J.D. and M.M. Castillo. 2007. Stream Ecology: Structure and Function of Running 

Waters, 2nd edition. Springer (The Netherlands). 436 pp. 

Brinson, M.M. and A.I. Malvárez. 2002. Temperate freshwater wetlands: type, status and 

threats. Environmental Conservation 29:115-133. 

Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe. 1979. Classification of Wetlands 

and Deepwater Habitats of the United States. U.S. Department of the Interior, Fish and 

Wildlife Service. FWS/OBS-79-31. 131 pp. 

Dahl, T.E. 2006. Status and trends of wetlands in the conterminous United States 1998 to 

2004. U.S. Department of the Interior, Fish and Wildlife Service, Washington, DC. 112 pp. 

Dahl, T.E. 1990. Wetlands losses in the United States 1780s to 1980s. U.S. Department of 

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Hall, J.V., W.E. Frayer, and B.O. Wilen. 1994. Status of Alaska Wetlands. U.S. Department 

of the Interior, Fish and Wildlife Service, Washington, DC. 33 pp. 

Hansen, W.F. 2001. Identifying stream types and management implications. Forest Ecology 

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King, D.M., Wainger, L.A., C.C. Bartoldus, and J.S. Wakely. 2000. Expanding wetland 

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Leopold, L.B., M.G. Wolman, and J.P. Miller. 1964. Fluvial Processes in Geomorphology. 

Dover Publications, Inc. (New York). 522 pp. 

Leopold, L.B. 1994. A View of the River. Harvard University Press (Cambridge). 298 pp. 

Meyer, J.L. and J.B. Wallace. 2001. Lost linkages and lotic ecology: rediscovering small 

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10/26/2010) 

Tiner, R.W. 2003. Geographically isolated wetlands in the United States. Wetlands 23:494-

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Tiner, R. 1997. NWI maps: Basic information on the Nation’s wetlands. Bioscience 47:269. 

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