11092 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

[ZRIN 0710–ZA02] 

Reissuance of Nationwide Permits 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Final notice. 

SUMMARY: The U.S. Army Corps of 

Engineers (Corps) is reissuing all 

existing nationwide permits (NWPs), 

general conditions, and definitions, 

with some modifications. The Corps is 

also issuing six new NWPs, two new 

general conditions, and 13 new 

definitions. The effective date for the 

new and reissued NWPs will be March 

19, 2007. These NWPs will expire on 

March 18, 2012. The NWPs will protect 

the aquatic environment and the public 

interest while effectively authorizing 

activities that have minimal individual 

and cumulative adverse effects on the 

aquatic environment. 

DATES: The NWPs and general 

conditions will become effective on 

March 19, 2007. 

ADDRESSES: U.S. Army Corps of 

Engineers, Attn: CECW–CO, 441 G 

Street NW., Washington, DC 20314– 

1000. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson at 202–761–4922 or by email at david.b.olson@usace.army.mil or 

access the U.S. Army Corps of Engineers 

Regulatory Home Page at http:// 

www.usace.army.mil/inet/functions/cw/ 

cecwo/reg/. 

SUPPLEMENTARY INFORMATION: 

Background 

In the September 26, 2006, issue of 

the Federal Register (71 FR 56258), the 

U.S. Army Corps of Engineers (Corps) 

published its proposal to reissue 43 

existing nationwide permits (NWPs) and 

issue six new NWPs. The Corps also 

proposed to reissue its general 

conditions and add one new general 

condition. 

The Corps proposal is intended to 

simplify the NWP program while 

continuing to provide environmental 

protection, by ensuring that the NWPs 

authorize only those activities that have 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and satisfy other public 

interest factors. 

As a result of the comments received 

in response to the September 26, 2006, 

proposal, we have made a number of 

changes to the NWPs, general 

conditions, and definitions to further 

clarify the permits, facilitate their 

administration, and strengthen 

environmental protection. These 

changes are discussed in the preamble. 

The Corps is reissuing the 43 existing 

NWPs, issuing six new NWPs, reissuing 

26 existing general conditions, and 

issuing one new general condition. The 

Corps is also reissuing many of the NWP 

definitions, and providing 13 new 

definitions. The effective date for these 

NWPs, general conditions, and 

definitions is March 19, 2007. These 

NWPs, general conditions, and 

definitions expire on March 18, 2012. 

While the Administrative Procedure 

Act requires a substantive rule to be 

published in the Federal Register at 

least 30 days before its effective date, 

exceptions to this requirement can be 

made for good cause (5 U.S.C. 

553(d)(3)). We are utilizing this good 

cause exception to reduce hardships on 

the regulated public. 

Grandfather Provision for Expiring 

NWPs 

In accordance with 33 CFR 330.6(b), 

activities authorized by the current 

NWPs issued on January 15, 2002, that 

have commenced or are under contract 

to commence by March 18, 2007, will 

have until March 18, 2008, to complete 

the activity under the terms and 

conditions of the current NWPs. 

Clean Water Act Section 401 Water 

Quality Certifications (WQC) and 

Coastal Zone Management Act (CZMA) 

Consistency Determinations 

In the September 26, 2006, Federal 

Register notice and concurrent with 

letters from Corps Districts to the 

appropriate state agencies, the Corps 

requested initial 401 certifications and 

CZM consistency determinations. This 

began the Clean Water Act section 401 

water quality certification (WQC) and 

Coastal Zone Management Act (CZMA) 

consistency determination processes. 

Today’s Federal Register notice 

begins the 60-day period for states, 

Indian Tribes, and EPA to complete 

their WQC process for the NWPs. This 

Federal Register notice also provides a 

60-day period for coastal states to 

complete their CZMA consistency 

determination processes. This 60-day 

period will end on May 11, 2007. 

While the states, Indian Tribes, and 

EPA complete their WQC processes and 

the states complete their CZMA 

consistency determination processes, 

the use of an NWP to authorize a 

discharge into waters of the United 

States is contingent upon obtaining 

individual water quality certification or 

a case-specific WQC waiver. Likewise, 

the use of an NWP to authorize an 

activity within, or outside, a state’s 

coastal zone that will affect land or 

water uses or natural resources of that 

state’s coastal zone, is contingent upon 

obtaining an individual CZMA 

consistency determination, or a casespecific presumption of CZMA 

concurrence. We are taking this 

approach to reduce the hardships on the 

regulated public that would be caused 

by a substantial gap in NWP coverage if 

we were to wait 60 days before these 

NWPs would become effective. 

After the 60-day period, the latest 

version of any written position take by 

a state, Indian tribe, or EPA on its WQC 

for any of the NWPs will be accepted as 

the state’s final position on those NWPs. 

If the state, Indian tribe, or EPA takes no 

action by May 11, 2007, WQC will be 

considered waived for those NWPs. 

After the 60-day period, the latest 

version of any written position take by 

a state on its CZMA consistency 

determination for any of the NWPs will 

be accepted as the state’s final position 

on those NWPs. If the state takes no 

action by May 11, 2007, CZMA 

concurrence will be presumed for those 

NWPs. 

Discussion of Public Comments 

I. Overview 

In response to the September 26, 

2006, Federal Register notice, we 

received more than 22,500 comments. 

We reviewed and fully considered all 

comments received in response to that 

notice. 

General Comments 

Many commenters provided general 

support for the proposal, and some of 

them stated that the changes are a step 

forward in improving consistency in the 

NWP program. Some commenters said 

that the proposed NWPs provide a 

balance between environmental 

protection and allowing development to 

occur. One commenter said that the 

NWP program provides sufficient 

environmental protection, through its 

general conditions and the ability for 

the district engineer to exercise 

discretionary authority to require 

individual permits. Several commenters 

stated that the proposed NWPs are 

simpler, clearer, and easier to 

understand. Three commenters said that 

further streamlining is necessary. One 

commenter recommended adopting a 

standard numbering system for 

paragraphs and subparagraphs within 

the NWP text. Three commenters said 

that the Corps should retain appropriate 

references to general conditions in the 

text of NWPs, for purpose of 

clarification. 

To the extent that it is feasible, we 

have adopted a standard format for the 


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NWPs. Some NWPs require different 

formats, to make them easier to read and 

provide further clarification. For the 

most part, it is not necessary to retain 

references to general conditions in the 

text of the NWPs, except for general 

condition 27, Pre-Construction 

Notification, because most general 

conditions apply to all NWPs. 

In contrast, a few commenters said 

that the proposed NWPs are not simpler 

and clearer. Three commenters declared 

that the proposed NWPs are more like 

individual permits than general permits. 

A number of commenters asserted that 

the proposed NWPs will significantly 

increase costs and delays for permit 

applicants. Four commenters said that 

the attempt at clarification and 

simplicity will reduce the flexibility of 

the NWP program. 

The NWPs issued today are not 

similar to individual permits. The 

NWPs provide a streamlined form of 

Department of the Army authorization 

for those activities that result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and satisfy other public 

interest review factors. In 2003, the 

average processing time for NWPs was 

27 days and for individual permits it 

was 144 days. In response to comments 

received as a result of the September 26, 

2006, Federal Register notice, we have 

modified some of the proposed NWPs to 

address provisions that could have 

unnecessary negative effects on 

regulatory efficiency and environmental 

protection. 

Other commenters expressed general 

opposition to the proposal, and said that 

the proposal weakens protection for 

waters and should be withdrawn. Many 

of these commenters objected to the 

goals of ‘‘streamlining’’ or ‘‘improving 

regulatory efficiency,’’ stating that the 

focus of the NWPs should be on 

compliance with the Clean Water Act. 

Some commenters expressed opposition 

to the issuance of the NWPs, and said 

that activities proposed for NWP 

authorization should be individually 

subjected to a public notice and 

comment process. One commenter 

suggested that pre-construction 

notifications should be posted on 

district web sites for at least 30 days 

before an NWP verification is issued, to 

allow for public comment on those 

proposed activities. 

The NWPs issued today comply with 

the requirements of the Clean Water 

Act. When the Clean Water Act was 

amended in 1977, Congress recognized 

the importance of general permits for 

the effective and efficient 

implementation of section 404. We do 

not agree that pre-construction 

notifications should be posted on the 

Internet for a public comment period. 

The review of pre-construction 

notifications by district engineers is 

sufficient for effective environmental 

protection. Some NWP activities require 

coordination with other Federal and/or 

State agencies, which provides a 

supplemental level of environmental 

protection. The activities authorized by 

NWPs have minimal adverse effects and 

are limited, within each permit, to 

narrowly defined categories of similar 

activities. Notice and opportunity for 

public comment on the authorization of 

these activities through NWPs is 

provided as part of the NWP 

promulgation process. The Corps 

believes this is the appropriate level of 

public notice and comment for these 

types of activities. Further, when 

reviewing pre-construction 

notifications, district engineers will 

exercise discretionary authority to 

require individual permits for those 

activities that they determine may result 

in more than minimal adverse effects on 

the aquatic environment or do not 

satisfy other public interest review 

factors, and thus warrant a more 

thorough individual review through a 

public notice and comment process. 

Some commenters stated that the 

NWPs should require consideration of 

less damaging alternatives, and others 

said that the Corps did not provide 

sufficient scientific justification for 

proposed changes to the NWPs, or 

demonstrate that NWP activities result 

in minimal adverse environmental 

effects. One commenter said that there 

is not sufficient emphasis on avoidance 

of impacts to waters of the United 

States. Another commenter objected to 

using NWPs to expand existing projects, 

stating that it discourages avoidance and 

minimization. 

The NWPs authorize only those 

activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment, and 

thus do not include a formal process for 

consideration of less damaging 

alternatives. General condition 20, 

Mitigation, requires permittees to avoid 

and minimize adverse effects to the 

maximum extent practicable on the 

project site. The Corps believes this 

ensures sufficient consideration of 

alternatives for the types of low-impact 

projects that are eligible for 

authorization through NWPs. The Corps 

notes that expansion of existing projects 

may support the goals of avoidance and 

minimization, in contrast to the 

alternative of developing new sites, 

which may involve more substantial 

adverse impacts. The 404(b)(1) 

Guidelines contain flexibility for those 

activities that result in minimal adverse 

effects on the aquatic environment. 

Compliance with the National 

Environmental Policy Act and the 

Section 404(b)(1) Guidelines is 

accomplished through decision 

documents prepared by the Corps. 

These decision documents contain 

findings that the NWPs result in 

minimal adverse effects, and are based 

on available data at the national scale. 

Division engineers issue supplemental 

decision documents for use of NWPs 

within Corps district boundaries. 

Several commenters said that the 

NWPs do not protect small wetlands 

and waterbodies enough, and one 

commenter said that the proposed 

permits do not support the ‘‘no overall 

net loss’’ goal for wetlands. In contrast, 

one commenter stated that the proposal 

provides adequate protection to the 

environment and supports the ‘‘no 

overall net loss’’ of wetlands goal. 

The NWPs protect all jurisdictional 

waters, including small wetlands and 

other waterbodies, through their terms 

and conditions, such as acreage limits 

and linear foot limits. The NWPs also 

support the ‘‘no overall net loss goal’’

through mitigation requirements, 

including aquatic resource restoration, 

establishment, enhancement, and 

preservation activities that may be 

required as compensatory mitigation. As 

noted above, general condition 20, 

Mitigation, also includes requirements 

for on-site avoidance and minimization. 

Two commenters objected to allowing 

district engineers to issue waivers that 

allow permittees to exceed the limits of 

NWPs, stating that such waivers do not 

support the minimal adverse effects 

requirement. Two commenters said that 

the NWPs authorize unlimited impacts 

to waters of the United States. One 

commenter remarked that acreage limits 

should be consistent for all NWPs. One 

commenter stated that the acreage limits 

in the proposed NWPs are sufficient to 

ensure minimal adverse effects. Three 

commenters asserted that the acreage 

limits of the proposed NWPs are too 

low, and they reduce the effectiveness 

of the NWP program. One commenter 

said that the low acreage limits for the 

NWPs lessen incentives to reduce 

impacts to waters, since many projects 

that previously qualified for NWP 

authorization now require individual 

permits. Another commenter stated that 

the acreage limits for all NWPs should 

be based on appropriate scientific and 

environmental criteria. 

Many of the NWPs have acreage 

limits, and most of those that do not are 

self-limiting due to the nature of the 

authorized activity (e.g., NWP 1 for aids 

to navigation or NWP 10 for mooring 


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buoys). Acreage limits in NWPs cannot 

be waived by the district engineer. 

Linear foot limits in some permits can 

be waived, but only for intermittent and 

ephemeral (not perennial) streams. Two 

NWPs (i.e., NWPs 13 and 36) have cubic 

yard limits that may be waived. Those 

NWPs that contain provisions allowing 

district engineers to waive linear foot or 

cubic yard limits require the district 

engineer to make a written 

determination of minimal adverse 

effects. In such cases, the permittee 

cannot assume that a waiver was 

granted if the district engineer does not 

affirm that waiver in writing (see 

general condition 27). The Corps 

believes these limited waiver provisions 

are appropriate because activities that 

exceed the limits may still have 

minimal adverse impacts and it may 

require a site-specific evaluation by the 

district engineer to decide if they do. 

Other NWPs that do not have limits 

typically provide environmental 

benefits, such as aquatic resource 

restoration activities authorized by NWP 

27 or hazardous and toxic waste 

cleanup activities authorized by NWP 

38. 

NWPs 21, 49, and 50 are a special 

case, in that they authorize activities for 

which review of environmental impacts, 

including impacts to aquatic resources, 

is separately required under other 

Federal authorities (e.g., Surface Mining 

Control and Reclamation Act (SMCRA) 

permits for coal mining activities). The 

Corps believes it would be 

unnecessarily duplicative to separately 

require the same substantive analyses 

through an individual permit 

application as are already required 

under SMCRA. However, through the 

pre-construction notification review 

process, the district engineer will 

consider the analyses prepared for the 

SMCRA permit and exercise 

discretionary authority to require an 

individual permit in cases where the 

district engineer determines, after 

considering avoidance and reclamation 

activities undertaken pursuant to 

SMCRA, that the residual adverse 

effects are not minimal. The project 

sponsor is required to obtain written 

verification prior to commencing work. 

The acreage limits for the NWPs are 

established so that they authorize most 

activities that result in minimal adverse 

effects on the aquatic environment. We 

acknowledge that there may be some 

activities that exceed the acreage limits 

and still have minimal impacts but the 

Clean Water Act requires us to ensure 

that all projects authorized by NWPs 

have minimal impacts, not that all 

minimal-impact projects can be 

authorized by NWPs. Activities that are 

not authorized through NWPs may be 

authorized through regional general 

permits or individual permits. 

One commenter stressed that the 

NWPs must be reissued in time, so that 

there is no gap between the expiration 

date of the current NWPs and the 

effective date of the new NWPs. Two 

commenters recommended 

administratively extending the current 

NWPs until the effective date of the new 

NWPs, through 5 U.S.C. 558(c), which is 

used to administratively extend 

National Pollutant Discharge 

Elimination System (NDPES) permits 

issued under Section 402 of the Clean 

Water Act. 

We cannot use 5 U.S.C. 558(c) to 

administratively extend the NWPs, 

since that provision of the 

Administrative Procedures Act applies 

only to activities of ‘‘a continuing 

nature’’ such as discharges of effluents 

authorized by National Pollutant 

Discharge Elimination System permits 

issued under Section 402 of the Clean 

Water Act. The vast majority of 

activities authorized by NWPs are 

construction activities, with specific 

start and end dates, either for the 

discharge of dredged or fill material into 

waters of the United States, or structures 

or work in navigable waters of the 

United States. In general, these NWP 

activities are not of a continuing nature, 

and do not meet the requirements of 5 

U.S.C. 558(c). The grandfather provision 

at 33 CFR 330.6(b) can be used to 

continue the authorization for those 

NWP activities that are under 

construction, or under contract to begin 

construction, after the NWP expires. 

This provision of the NWP regulations 

allows the permittee up to one year to 

complete the authorized NWP activity. 

Today’s reissued and new permits will 

become effective on March 19, 2007, the 

day after the existing permits expire. 

Thus there will be no gap in coverage. 

The Corps expects that some States may 

be able to make their final Section 401 

water quality certifications for all or 

some permits by this date. In cases 

where the State has not completed a 401 

water quality certification by this time, 

the Corps will issue provisional 

verifications and permittees will be 

required to obtain individual State 

certifications prior to commencing 

discharges into waters of the United 

States. 

Compliance With Section 404(e) of the 

Clean Water Act and the 404(b)(1) 

Guidelines 

Several commenters said that the 

proposed NWPs are contrary to the 

intent of section 404(e) to provide an 

expedited, streamlined permit program 

for activities that have minimal 

environmental impacts. 

The NWPs continue to provide a 

streamlined authorization process for 

those activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Those activities that do not qualify for 

NWP authorization may be authorized 

by regional general permits or 

individual permits. 

Many commenters asserted that the 

NWPs result in more than minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. Several commenters said 

that the NWPs do not comply with the 

404(b)(1) Guidelines. One commenter 

said that the Corps should provide 

quantitative statistics on actual impacts, 

to predict cumulative impacts resulting 

from the NWPs. Two commenters 

believe that the draft decision 

documents do not adequately 

demonstrate that NWPs will result in 

minimal individual and cumulative 

impacts to waters of the United States. 

They said that there is not sufficient 

documentation to support estimates of 

the number of times an NWP will be 

used, the acres impacted, and the acres 

mitigated. They also stated that there 

should be more specific evaluations of 

particular types of waters, as well as 

landscape considerations. Four 

commenters said that the Corps cannot 

rely on mitigation to ensure minimal 

adverse effects, stating that the 

evaluation of minimal adverse effects 

must be completed prior to issuing a 

general permit. Therefore, the Corps 

cannot rely on mitigation that will be 

offered by permittees when making its 

finding under the 404(b)(1) Guidelines. 

When we issue the NWPs, we fully 

comply with the requirements of the 

404(b)(1) Guidelines at 40 CFR 230.7, 

which govern the issuance of general 

permits under section 404. For the 

section 404 NWPs, each decision 

document contains a 404(b)(1) 

Guidelines analysis. Section 230.7(b) of 

the 404(b)(1) Guidelines requires only a 

‘‘written evaluation of the potential 

individual and cumulative impacts of 

the categories of activities to be 

regulated under the general permit.’’

Since the required evaluation must be 

completed before the NWP is issued, the 

analysis is predictive in nature. The 

estimates of potential individual and 

cumulative impacts, as well as the 

projected compensatory mitigation that 

will be required, are based on the best 

available data from the Corps district 

offices, based on past use of NWPs. In 

our decision documents, we also used 

readily available national data on the 

status of wetlands and other aquatic 


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habitats in the United States, and the 

potential impacts of the NWPs on those 

waters. 

The 404(b)(1) Guidelines at 40 CFR 

230.7 do not prohibit the consideration 

of mitigation when making the 

predictive evaluation of potential 

individual and cumulative impacts that 

may be authorized by an NWP. The 

practice of using compensatory 

mitigation to ensure minimal adverse 

individual and cumulative adverse 

effects is an important component of the 

NWP program (see 33 CFR 330.1(e)(3)). 

Two commenters said that the Corps 

cannot rely on regional conditioning 

and discretionary authority to ensure 

minimal adverse effects. One 

commenter objected to the ability of the 

district engineer to exercise 

discretionary authority to impose 

conditions on NWP activities. Another 

commenter stated that in order to ensure 

minimal adverse effects, preconstruction notification should be 

required for all NWPs. A number of 

commenters said that many of the NWPs 

do not authorize activities that are 

similar in nature. They said that the 

Corps is required to explain why 

activities authorized by an NWP are 

similar in nature to warrant 

authorization under a single NWP. 

The pre-construction notification 

review process and discretionary 

authority are important tools to help 

ensure that the NWPs authorize only 

those activities with minimal individual 

and cumulative adverse effects. If the 

district engineer reviews a preconstruction notification and 

determines that the impacts are more 

than minimal, discretionary authority 

will be exercised and either the NWP 

will be conditioned to require 

mitigation or other actions to ensure 

minimal adverse effects or an individual 

permit will be required. The Corps 

disagrees that pre-construction 

notification is necessary for all NWP 

activities. However, the Corps has 

expanded the scope of activities 

requiring pre-construction notification. 

Specifically, all activities conducted 

under NWPs 7, 8, 17, 21, 29, 31, 33, 34, 

37, 38, 39, 40, 42, 44, 45, 46, 49, and 50 

now require pre-construction 

notification, regardless of acreage 

impacted. This will enable district 

engineers to better ensure that these 

permits authorize only activities with 

minimal impacts. 

These NWPs satisfy the requirement 

under Section 404(e) of the Clean Water 

Act that the categories of authorized 

activities be similar in nature. The 

‘‘similar in nature’’ provision does not 

require NWP activities to be identical to 

each other. We believe that the 

‘‘categories of activities that are similar 

in nature’’ requirement of section 404(e) 

is to be interpreted broadly, for practical 

implementation of this general permit 

program. Nationwide permits, as well as 

other general permits, are intended to 

reduce administrative burdens on the 

Corps and the regulated public, by 

efficiently authorizing activities that 

have minimal adverse environmental 

effects. For each NWP that authorizes 

activities under Section 404 of the Clean 

Water Act, the 404(b)(1) Guidelines 

analysis provides a brief explanation as 

to why the activities authorized by that 

NWP are similar in nature. 

One commenter said that 

consideration of impacts resulting from 

general permits should not be limited to 

the aquatic environment. This 

commenter said that Section 404(e) of 

the Clean Water Act requires permitted 

activities to have minimal impacts on 

the environment as a whole. 

In addition to the requirement that 

there be no more than minimal adverse 

effects on the aquatic environment, 

activities authorized by NWPs must also 

result in minimal adverse effects with 

regards to the Corps public interest 

factors (see 33 CFR 330.1(d)), which 

include other components of the 

environment. 

Compliance With the National 

Environmental Policy Act 

Many commenters said that the Corps 

must complete an Environmental 

Impact Statement for the proposed 

NWPs. One commenter remarked that 

the EIS must consider the individual 

impacts of the NWPs, as well as their 

cumulative impacts. One comment 

asserted that mitigation cannot be used 

to justify using an environmental 

assessment for NEPA compliance, 

instead of an Environmental Impact 

Statement. 

The NWPs authorize activities that 

have minimal individual and 

cumulative adverse effects on the 

aquatic environment and satisfy other 

public interest review factors. The 

NWPs do not reach the level of 

significance required for an EIS. The 

Corps complies with the requirements 

of the NEPA by preparing an 

environmental assessment for each 

NWP. When an NWP is issued, a 

Finding of No Significant Impact is also 

issued. 

The use of mitigation to make a 

Finding of No Significant Impact is a 

standard practice for NEPA compliance. 

For the purposes of NEPA, mitigation 

includes avoiding impacts, minimizing 

impacts, rectifying impacts through 

repairing or restoring the affected 

environment, reducing or eliminating 

impacts over time through preservation 

and maintenance activities, and 

compensating for impacts by replacing 

or providing resources or environments 

(see 40 CFR 1508.20). Through the 

requirements of general condition 20, 

Mitigation, the review of preconstruction notifications by district 

engineers, and regional and special 

conditions imposed on the NWPs by 

division and district engineers, NWP 

activities use all these forms of 

mitigation so that the adverse effects of 

the NWPs do not reach the level of 

significance that requires an 

Environmental Impact Statement. 

Several commenters stated that the 

draft decision documents do not satisfy 

the requirements of the National 

Environmental Policy Act (NEPA). 

Some commenters said that the analyses 

in the decision documents are not based 

on realistic data. One commenter noted 

that the average impact is often much 

less than the acreage limit for the NWP, 

and said that the mitigation ratios seem 

too high. One commenter said that the 

environmental assessments in draft 

decision documents must contain sitespecific analyses. Two commenters 

asserted that the cumulative effects 

analyses in the decision documents are 

inadequate. One commenter said that 

the cumulative effects analysis should 

include information on the past use of 

NWPs, as well as information on other 

development activities expected to have 

impacts on protected resources. 

We believe the data in the draft 

decision documents comply with the 

requirements of NEPA. The estimates of 

the projected use of the NWPs, the acres 

impacted, and the amount of 

compensatory mitigation are based on 

available data from Corps district 

offices, and other sources of data, such 

as surveys. Those data are based on preconstruction notifications and other 

requests for NWP verifications for 

activities that do not require preconstruction notification. For those 

NWP activities that do not require 

notification, it is necessary to derive 

estimates. For the decision documents, 

we must use predictive data, since the 

future use of an NWP is speculative. 

Likewise, we cannot provide sitespecific information for these 

environmental assessments, because 

there are no specific sites or projects 

associated with the proposed issuance 

of an NWP. Authorized impacts are 

usually much less than the acreage limit 

for an NWP because of the avoidance 

and minimization required by the terms 

and conditions of the NWPs. The 

compensatory mitigation data provided 

in the decision documents include 

preservation. 


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On June 24, 2005, the Council on 

Environmental Quality issued guidance 

on the consideration of past actions for 

cumulative effects analyses. According 

to this guidance, the cumulative effects 

analysis needs to consider relevant past 

actions that can be used to analyze 

reasonably foreseeable effects that have 

‘‘a continuing, additive, and significant 

relationship to those effects.’’ The 

guidance also recommends that agencies 

look at the present effects of past actions 

that are relevant because of significant 

cause-and-effect relationships with the 

effects for the proposed action and its 

alternatives. Except for a few activities, 

the NWPs do not authorize activities of 

a continuing nature. In general, they 

authorize construction activities with 

specific start and end dates. The NWPs 

can be issued for only a period of five 

years or less, and once an NWP expires, 

it cannot be used to authorize activities 

in waters of the United States. An 

activity must then be authorized by the 

reissued NWP, another NWP, a regional 

general permit, or an individual permit. 

The cumulative effects analysis is more 

properly focused on the permits that can 

be used to authorize regulated activities, 

not past permits that have expired. 

Therefore, the cumulative effects 

analysis for the NWP issuance needs to 

focus on the reasonably foreseeable 

cumulative effects that are expected to 

occur during the five year period the 

NWPs are valid. We use information on 

past use of the NWPs to estimate how 

often an NWP will be used during the 

period it will be valid, and to estimate 

the impacts and compensatory 

mitigation resulting from the use of that 

NWP. 

One commenter requested 

clarification as to whether the draft 

decision documents included an 

environmental assessment, an EIS, or 

another type of NEPA document. Two 

commenters remarked that the Corps 

failed to solicit public comment on the 

environmental assessments for the 

proposed NWPs. Two commenters 

objected to the Finding of No Significant 

Impact (FONSI) in each draft decision 

document, stating that it is 

inappropriate to do a FONSI for a 

proposed action. Another commenter 

concurred with the FONSI found in 

each NWP decision document. One 

commenter said that the draft decision 

documents accurately analyzed 

anticipated environmental effects of the 

proposed NWPs. 

A draft environmental assessment was 

prepared for each of the proposed 

NWPs. The draft environmental 

assessment was in the draft decision 

document, along with the draft 

statement of findings and, if the NWP 

authorized activities under Section 404 

of the Clean Water Act, a draft Section 

404(b)(1) Guidelines analysis. Those 

draft decision documents were available 

for public review and comment at the 

same time as the proposed NWPs, 

general conditions, and definitions. A 

number of commenters who commented 

on the proposed NWPs also commented 

on the draft decision documents. 

Commenters could also provide input 

on the draft FONSI in each decision 

document. 

Compliance With the Endangered 

Species Act 

In the September 26, 2006, Federal 

Register notice, we stated that we will 

conduct Endangered Species Act 

Section 7(a)(2) consultation for the 

NWPs. Since the issuance of the 

September 26, 2006, proposal, the Corps 

has been working with the National 

Marine Fisheries Service (NMFS) and 

the U.S. Fish and Wildlife Service 

(USFWS) to develop an analysis plan to 

guide the formal programmatic Section 

7 consultation for the NWPs. As soon as 

the analysis plan is completed, the 

Corps will request programmatic 

Endangered Species Act Section 7(a)(2) 

consultation with the USFWS and 

NMFS. Prior to the effective date of 

these NWPs, the Corps will issue a 

section 7(d) determination for the NWP 

Program. 

Two commenters said the Corps must 

conduct Endangered Species Act 

consultation before the NWPs are 

issued. One of these commenters said 

that the Corps must conduct 

programmatic section 7 consultation for 

the NWP program, with mandatory 

district-by-district formal consultations. 

One commenter requested a timeline for 

the programmatic Section 7 consultation 

with the USFWS and NMFS. Another 

commenter asked for clarification 

whether Section 7 ESA consultation 

will be conducted for each NWP 

authorization or the NWP program as a 

whole. One commenter objected to the 

Corps conducting section 7 consultation 

for coal mining activities authorized by 

the Surface Mining Control and 

Reclamation Act. 

The programmatic ESA consultation 

will be conducted for the NWP program 

as a whole, and will be concluded as 

expeditiously as possible. To address 

ESA compliance while programmatic 

consultation is being conducted, a 

revised Section 7(d) determination will 

be issued for the NWP program before 

the effective date of these NWPs. The 

Section 7(d) determination discusses 

how the issuance of these NWPs will 

not foreclose any options. The 

requirements of general condition 17 

and 33 CFR 330.4(f) will ensure 

compliance with the ESA. We anticipate 

that the programmatic consultation will 

result in a biological opinion that 

provides tools that districts can use to 

better address potential impacts to the 

endangered and threatened species that 

occur in their areas of regulatory 

jurisdiction. Corps districts will conduct 

their own formal Section 7 

consultations as necessary. The 

programmatic consultation will be 

conducted for the NWP program; its 

applicability to NWP 21 and other 

NWPs will be addressed as part of the 

programmatic consultation itself. 

One commenter said that the Corps 

cannot rely on permit applicants to 

notify them in cases where ESA 

consultation is necessary. Two 

commenters said that the proposed 

changes to general condition 17, which 

requires district engineers to notify 

prospective permittees of their ‘‘no 

effect’’ or ‘‘may affect’’ determinations 

within 45 days of receipt of a complete 

pre-construction notification, violates 

the ESA since the Corps will be unable 

to make its decision based on the best 

available science. Two commenters said 

that the Corps must require preconstruction notifications for all NWP 

activities to help ensure compliance 

with the requirements of the ESA. Two 

other commenters stated that speciesspecific regional conditions must be 

imposed on the NWPs to protect 

endangered and threatened species. 

Non-federal permittees shall notify 

the district engineer if any listed species 

or designated critical habitat might be 

affected or is in the vicinity of the 

project, or if the project is located in 

designated critical habitat, and in such 

cases 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. This requirement 

applies even when a pre-construction 

notification would not otherwise be 

required. In such cases, this condition 

also prohibits the prospective permittee 

from conducting the NWP activity until 

the district engineer notifies him or her 

that the requirements of the ESA have 

been fulfilled and the activity is 

authorized by NWP. The ESA 

regulations at 50 CFR part 402 do not 

require ESA consultation for those 

activities that will not affect endangered 

or threatened species or destroy or 

modify designated critical habitat. In 

some districts, regional conditions will 

be imposed on the NWPs to protect 

listed species and critical habitat. 

The notification requirement in 

general condition 17 does not violate 

the ESA. Forty-five days is generally 


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sufficient to screen proposed activities 

for potential effects to endangered and 

threatened species or designated critical 

habitat, and determine if section 7 

consultation is necessary. The 

notification requirement will help 

improve ESA compliance by keeping 

the prospective permittee aware of the 

status of his or her pre-construction 

notification and preclude applicants 

from assuming that they can proceed 

after the 45 day pre-construction 

notification period has ended, if they 

have not heard back from the Corps that 

ESA requirements have been fulfilled 

and the activity is authorized. Districts 

will continue to develop regional 

conditions to further protect endangered 

and threatened species, as well as 

critical habitat. 

Linear Foot Limits for Stream Bed 

Impacts 

In the September 26, 2006, Federal 

Register notice, we proposed to modify 

several NWPs to include ephemeral 

streams in the 300 linear foot limits for 

losses of stream beds. We also proposed 

to allow district engineers to issue 

written waivers to the 300 linear foot 

limit for intermittent and ephemeral 

streams, upon making a determination 

that the adverse effects on the aquatic 

environment will be minimal. Many 

commenters objected to including 

ephemeral streams in the 300 linear foot 

limit for stream beds for NWPs 29, 39, 

40, 42, and 43. Many other commenters 

supported the proposed change. A large 

number of commenters objected to 

allowing district engineers to waive the 

300 linear foot limit, stating that miles 

of stream bed could be lost, resulting in 

more than minimal adverse 

environmental effects. A few 

commenters supported the proposed 

waiver. One commenter said that limits 

to filling or excavating ephemeral 

streams should be addressed through 

the regional conditioning process, 

instead of the national terms and 

conditions of the NWPs. Another 

commenter recommended imposing a 

higher linear foot limit for losses of 

ephemeral streams. 

Ephemeral streams are important 

components of the stream network. 

Applying the 300 linear foot limit to 

ephemeral stream beds will help ensure 

that the applicable NWPs will authorize 

activities with minimal individual and 

cumulative adverse effects on the 

aquatic environment. The ability of 

district engineers to issue written 

waivers of the 300 linear foot limit for 

intermittent and ephemeral stream beds 

provides flexibility in the 

administration of the NWP program. In 

cases where the 300 linear foot limit is 

waived, the acreage limit of the NWP 

still applies. We believe it is more 

appropriate to limit losses of ephemeral 

stream beds through the national NWP 

terms and conditions, to provide 

consistent protection for those waters 

across the country. Regional differences 

in the values applied to ephemeral 

stream functions and services can be 

addressed through the waiver process. 

We believe the 300 linear foot limit, in 

conjunction with the waiver process, 

provides sufficient flexibility for the 

NWP program while ensuring minimal 

adverse effects. 

Three commenters recommended that 

the Corps modify its definition of 

‘‘ephemeral stream’’ to simplify the 

process of distinguishing between 

ephemeral and intermittent streams 

instead of applying the 300 linear foot 

limit to ephemeral streams. Another 

commenter indicated that the difficulty 

of distinguishing between ephemeral 

and intermittent streams is sufficient 

justification for including ephemeral 

streams in the 300 linear foot limit. In 

contrast, several commenters stated that 

including ephemeral streams in the 300 

linear foot limit would not simplify the 

administration of the NWP program, 

because it would result in a large 

number of individual permits, as well as 

substantial increases in the Corps 

workload. Two commenters asked the 

Corps to establish criteria for 

determining when a waiver of the 300 

linear foot limit can be issued. One 

commenter stated that the 300 linear 

foot limit should not apply to filling or 

excavating drainage ditches. One of 

these commenters said that an acreage 

limit should be applied to streams, 

instead of a linear foot limit. 

Modifying the definition of 

‘‘ephemeral stream’’ is not an 

appropriate alternative to modifying the 

300 linear foot limit. The definitions of 

‘‘ephemeral stream’’ and ‘‘intermittent 

stream’’ that were first promulgated for 

the NWPs in 2000 are based on the 

hydrologic differences between those 

stream types, especially the differences 

in how the stream bed interacts with the 

water table. We do not agree that the 

changes to the 300 linear foot limit will 

result in a large increase in the number 

of individual permits processed per 

year. Under the current NWPs, district 

engineers could exercise discretionary 

authority and require individual permits 

if proposed impacts to ephemeral 

streams would be more than minimal. 

We do not believe it would be 

appropriate to establish national criteria 

for determining when a waiver of the 

300 linear foot limit would be applied. 

These determinations should be made 

on a case-by-case basis by district 

engineers, depending upon assessments 

of site-specific conditions. Even though 

the acreage limits of NWPs 29, 39, 40, 

42, and 43 also apply to losses of stream 

bed, the linear foot limit is a useful tool 

for ensuring minimal adverse effects to 

these linear aquatic ecosystems. The 300 

linear foot limit for filling and 

excavating stream beds does not apply 

to ditches constructed in wetlands, or to 

ditches constructed in uplands that are 

determined to be waters of the United 

States. However, the 300 linear foot 

limit does apply to ditches that are 

constructed by modifying streams 

through channelization or other 

activities. 

Pre-Construction Notification 

Many commenters objected to the 

proposal to add or expand preconstruction notification requirements 

for several NWPs, and a few of these 

commenters said that lowering the preconstruction notification threshold will 

substantially increase the Corps 

workload. Several commenters stated 

that increasing the number of activities 

that require pre-construction 

notification will result in additional 

delays and costs for permit applicants. 

In contrast, a number of commenters 

said that pre-construction notification 

should be required for all NWP 

activities, so that site-specific concerns 

can be more effectively addressed. One 

commenter asserted that the use of the 

pre-construction notification process 

and the use of discretionary authority 

should be limited, to provide more 

certainty to the NWP authorization 

process. Another commenter said that 

the decision to lower pre-construction 

notification thresholds should be left to 

division engineers and the regional 

conditioning process, to provide more 

flexibility for the NWP program. 

Modifying NWPs 39, 40, 42, and 43 to 

require pre-construction notification for 

all activities will help ensure that these 

NWPs authorize only those activities 

that result in minimal individual and 

cumulative adverse effects on the 

aquatic environment and other public 

interest review factors, such as flood 

hazards and floodplain values. Corps 

districts have already been receiving 

large numbers of verification requests 

for NWP 39, 40, 42, and 43 activities 

that do not require pre-construction 

notification, so we believe that this 

change will not result in a substantial 

increase in our workload. In addition, 

the modified pre-construction 

notification threshold will facilitate 

compliance with the Endangered 

Species Act and Section 106 of the 

National Historic Preservation Act, by 

better ensuring notice of activities that 


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may have a higher likelihood of 

affecting endangered or threatened 

species, designated critical habitat, or 

historic properties. We do not agree that 

it is necessary to require preconstruction notifications for all NWP 

activities, because many NWP activities 

have negligible effects on the aquatic 

environment and the public interest 

review factors. We have focused the preconstruction notification requirements 

on those activities that have the 

potential for adverse effects that may 

require additional scrutiny by district 

engineers, including ESA and/or NHPA 

consultation. 

The pre-construction notification and 

discretionary authority processes 

provide flexibility to the Corps 

regulatory program, by allowing the 

Corps to focus its limited resources on 

activities that have the potential to have 

more than minimal adverse effects on 

the aquatic environment. We believe 

that the proposed changes to the preconstruction notification thresholds are 

necessary for effective implementation 

of the NWP program, and to address 

issues of concern at the national level. 

One commenter objected to the 

increased use of the pre-construction 

notification process and the waivers of 

limits, such as the 300 linear foot limit 

for the loss of intermittent and 

ephemeral stream beds for certain 

NWPs, to authorize activities by NWP. 

Another commenter said that it is an 

administrative burden to require the use 

of NWP 33 with other NWPs when instream construction activities need to 

occur in dry conditions. This 

commenter said that NWP 33 should 

only be used when temporary work is 

done in waters of the United States, and 

no other NWP is needed to authorize 

permanent structures or fills for the 

activity. One commenter recommended 

requiring pre-construction notifications 

for filling waters of the United States 

that are five or more feet deep, because 

of the effects on the hydrologic balance 

of a region. 

The ability to waive limits after the 

review of a pre-construction notification 

and a written determination that the 

adverse effects of a particular NWP 

activity will be minimal provides 

flexibility to the NWP program, and 

allows the Corps to focus more of its 

resources on those activities that require 

individual permits and may have 

substantial adverse effects on the 

aquatic environment and the public 

interest. In the final NWPs, we have 

addressed the concern regarding the 

requirement to use NWP 33 for all 

temporary construction, access, and 

dewatering activities. Those changes are 

discussed in further detail for each 

applicable NWP. Many NWP activities 

that result in a discharge of dredged or 

fill material into waters of the United 

States, regardless of water depth, require 

pre-construction notification, which 

will allow district engineers to review 

those activities on a case-by-case basis 

and assess potential effects on the 

hydrologic balance of the area in the 

vicinity of the proposed work. 

One commenter said that the preconstruction notification process should 

be modified to require notification of 

Indian Tribes, to provide them with the 

opportunity to comment on proposed 

activities that may result in the violation 

of Indian rights. This commenter also 

said that if the Indian Tribe identifies a 

potential conflict with Federallyprotected Indian rights, the use of the 

NWPs should not be allowed. 

The regional conditioning process, as 

well as government-to-government 

consultation between Tribes and the 

Corps districts where Tribal lands are 

located, are more appropriate 

mechanisms to address this 

commenter’s concerns, since there are 

over 580 Federally-recognized tribes, 

and each Tribe is likely to have different 

concerns regarding the implementation 

of the NWP program. General condition 

16 states that no NWP activity may 

impair reserved Tribal rights. Activities 

that do impair reserved Tribal rights are 

not authorized by NWPs. Regional 

conditions are an effective mechanism 

for addressing the concerns of a specific 

Indian Tribe, and can be used to 

facilitate working relationships between 

the Corps and the Tribe to help the 

Corps fulfill its trust responsibilities. 

Clean Water Act Jurisdiction 

On June 19, 2006, the Supreme Court 

issued its decision in the case of 

Rapanos et ux, et al, v. United States. 

Many commenters cited this decision, 

as well as other court decisions, and 

said that the proposed NWPs exceed the 

Corps jurisdictional authority under 

Section 404 of the Clean Water Act. 

Several commenters said that ephemeral 

streams are not subject to Clean Water 

Act jurisdiction and should not be 

covered in the NWPs. Another 

commenter asserted that intermittent 

streams are not waters of the United 

States. 

The Rapanos decision, as well as 

other court decisions made in the past 

several years, raises questions about the 

jurisdiction of the Clean Water Act, 

including Section 404, over some 

intermittent and ephemeral streams and 

their adjacent wetlands. The Corps will 

assess jurisdiction regarding such 

waters on a case-by-case basis in 

accordance with evolving case law and 

any future guidance that may be issued 

by appropriate Executive Branch 

agencies (e.g., the Corps, U.S. 

Environmental Protection Agency). 

Under the current regulations and 

guidance, intermittent and ephemeral 

streams may meet the regulatory 

definition of ‘‘waters of the United 

States’’ and be subject to Clean Water 

Act jurisdiction. Regulatory jurisdiction 

over these waterbodies will be 

determined on a case-by-case basis by 

district engineers, in accordance with 

current and future regulations and 

guidance. 

One commenter said that when 

applying the NWP acreage limits to 

wetlands, the Corps should not include 

all wetlands, just those subject to Clean 

Water Act jurisdiction. One commenter 

stated that a clearer definition of 

‘‘navigable waters’’ is needed. Another 

commenter said that ditches are not 

waters of the United States, and impacts 

to ditches should instead be addressed 

through state programs. A commenter 

stated that the Corps must promulgate 

regulations to define ‘‘waters of the 

United States’’ for the purposes of 

implementing the NWP program. 

The acreage limits of the NWPs apply 

only to losses of waters of the United 

States, including jurisdictional wetlands 

(see the definition of the term ‘‘loss of 

waters of the United States’’ in the 

‘‘Definitions’’ section of the NWPs). 

Similarly, linear foot limits apply only 

to jurisdictional streams. Ditches may 

also be subject to jurisdiction under 

Section 404 of the Clean Water Act and/ 

or Section 10 of the Rivers and Harbors 

Act of 1899, if they meet the regulatory 

definitions of ‘‘waters of the United 

States’’ and/or ‘‘navigable waters of the 

United States.’’ Waters of the United 

States are defined at 33 CFR part 328 

and navigable waters of the United 

States are defined at 33 CFR part 329. 

Regional Conditioning of Nationwide 

Permits 

One commenter stated that regional 

conditions are unnecessary, and result 

in too much restriction of the NWPs. A 

commenter remarked that placing too 

many regional conditions on the NWPs 

is contrary to E.O. 13274, 

Environmental Stewardship and 

Transportation Infrastructure Project 

Reviews. One commenter said that 

regional conditions should not be 

redundant with the requirements of 

other agencies, and the streamlining 

objective of the NWPs should be 

maintained. 

Regional conditions are necessary to 

account for regional differences in 

aquatic resource functions, services, and 

values and to ensure that the NWPs 


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authorize only those activities that have 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

review factors. Regional conditions are 

important tools for protecting 

endangered and threatened species, 

designated critical habitat for those 

species, essential fish habitat, historic 

properties, and other important 

resources. As a general matter, we agree 

that regional conditions should not 

duplicate the requirements of other 

agencies, but the Corps often has the 

responsibility to comply with other 

statutes and regulations administered by 

other agencies. 

Two commenters said that there 

needs to be clearer rules for the 

adoption of regional conditions for the 

NWPs. A couple of commenters 

indicated that districts need to provide 

justifications for proposed regional 

condition, and make that information 

available to the public. Three 

commenters said that regional 

conditions should not be limited to 

further restricting the use of the NWPs. 

One commenter said that regional 

conditions should not be based on 

district boundaries. Instead, they should 

be based on ecoregions or other 

ecologically-delineated areas. Another 

commenter recommended that the 

Corps work with other agencies to 

develop a list of high value wetlands in 

which NWPs cannot be used. 

Regional conditions may only further 

condition or restrict the applicability of 

an NWP (see 33 CFR 330.1(d)). In areas 

where environmental conditions and 

other circumstances warrant less 

restrictive general permit conditions, 

district engineers may issue regional 

general permits to authorize similar 

activities, as long as those general 

permits meet applicable requirements. 

The regulations governing the adoption 

of regional conditions are provided at 33 

CFR 330.5(c). We believe it is necessary 

to provide flexibility to division 

engineers to determine the necessity 

and appropriateness of regional 

conditions to address concerns 

regarding the use of NWPs in a 

particular area. The notices issued by 

Corps districts soliciting public 

comment on proposed regional 

conditions are required to include 

statements concerning the 

environmental factors or other public 

interest factors resulting in the need for 

regional conditions (see 33 CFR 

330.5(c)(1)). Regional conditions may be 

based on geographic areas other than 

district boundaries. Regional conditions 

may be imposed on the use of NWPs in 

watersheds, counties, states, ecoregions, 

or other types of areas. General 

condition 19, designated critical 

resource waters, provides a national list 

of high value waters. Districts can 

coordinate with other agencies to 

develop lists of high value wetlands 

within their district boundaries. 

Data Collection 

One commenter said that the 

supporting data used by the Corps falls 

short of the standards required by the 

Data Quality Act of 2001, and the Office 

of Management and Budget’s 

‘‘Guidelines for Ensuring and 

Maximizing the Quality, Objectivity, 

Utility, and Integrity of Information 

Disseminated by Federal Agencies.’’

This commenter stated that the Corps 

should provide data on aquatic resource 

functions to support its minimal impact 

determinations. 

The data used for the NWP decision 

documents are the best available data at 

a national scale. The estimated impacts 

and mitigation provided in the decision 

documents were developed by 

reviewing and analyzing permit data 

from our district offices, as well as 

through consideration of how proposed 

changes to the NWPs would affect the 

amounts of authorized impacts and 

mitigation. Data on aquatic resource 

functions is generally not available. The 

National Wetland Inventory examines 

wetland status and trends for the 

conterminous United States, but 

information on wetland quality and 

function is not available. 

Three commenters expressed concern 

about tracking permanent and 

temporary impacts to waters of the 

United States and recommended that 

the Corps implement a national tracking 

and monitoring system. This system 

would also facilitate the sharing of 

information with cooperating resource 

agencies and help improve decision 

making. 

We are in the process of transitioning 

to a new automated information system 

(AIS) for the Corps regulatory program. 

The new AIS is version 2.0 of the 

‘‘OMBIL Regulatory Module’’ (ORM 

2.0). This national tracking and 

monitoring system will improve and 

standardize data collection for the Corps 

regulatory program, and will assist in 

decision-making for permit actions and 

other types of regulatory activities, such 

as jurisdictional determinations. ORM 

2.0 will be spatially enabled, using 

geographic information systems and 

other analytical tools that will provide 

more efficient and effective processing 

of permit applications, jurisdictional 

determinations, and other tasks. 

Cumulative impact analysis will also be 

supported by ORM 2.0. The structure of 

ORM 2.0 will also be standard among 

Corps districts, providing for more 

consistent information collection and 

storage, and will be readily available for 

analysis and reporting. The standard 

structure of ORM will also promote 

consistency in Regulatory Program 

implementation. 

ORM 2.0 will help improve data 

collection for the NWP program, as well 

as other types of permits issued by the 

Corps. Data collection will be more 

standard among permit types, especially 

for impact and mitigation data. We will 

continue to collect data on authorized 

losses of waters of the United States, 

including resource type, acreage, and 

impact type. ORM 2.0 incorporates 

several additional AIS resources to 

assist in the tracking of all required 

compensatory mitigation, including the 

amount, type (e.g., reestablishment), and 

source (i.e., permittee-responsible 

mitigation, mitigation bank, or in-lieu 

fee). 

ORM 2.0 will also facilitate 

compliance with the Endangered 

Species Act, the National Historic 

Preservation Act, and the essential fish 

habitat provisions of the MagnusonStevens Fishery Management and 

Conservation Act. Screening tools based 

on available data for those resources 

will help Corps personnel identify 

activities that may affect those resources 

and require further consultation. The 

available resource data will be provided 

by other agencies, through data sharing 

agreements. Available data sets from the 

national, state, and local levels can be 

utilized by ORM 2.0. 

ORM 2.0 is capable of supporting 

electronic interagency coordination. For 

activities that typically require 

interagency coordination and 

consultation, agencies will have the 

option of receiving electronic 

coordination notices and consultation 

requests and of responding to the Corps 

via a link to ORM 2.0. Agencies will be 

required to enter into a Memorandum of 

Agreement supporting the use of 

electronic communications for permit 

activities. 

ORM 2.0 will also include time 

tracking features to help remind Corps 

project managers when the end of the 

45-day pre-construction notification 

review will occur. Monitoring and 

enforcement activities will also be 

supported by ORM 2.0, including the 

tracking of when monitoring reports for 

compensatory mitigation projects are 

due. 

ORM 2.0 will also support an 

electronic permit application, thereby 

allowing prospective permittees to 

submit their pre-construction 

notifications electronically to the 

appropriate Corps district. Permit 


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applicants will be able to check the 

status of their permit applications 

through the electronic permit Web site. 

Other Issues 

One commenter said that the Corps 

should stop issuing NWPs until 

effective compensatory mitigation is 

provided for those permits. Several 

commenters stated that the Corps places 

too much reliance on compensatory 

mitigation, citing recent studies that 

concluded that compensatory mitigation 

projects often fail to achieve their 

objectives. A couple of commenters 

asserted that the Corps should not rely 

on compensatory mitigation to ensure 

minimal individual and cumulative 

adverse effects. Another commenter 

objected to the more stringent 

requirements for compensatory 

mitigation for NWP activities, stating 

that compensatory mitigation for small 

impacts tends to be more expensive 

than the costs to plan and construct the 

proposed activity requiring NWP 

authorization. 

Compensatory mitigation is an 

important mechanism to help ensure 

that the NWPs authorize activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environmental. We acknowledge 

that the ecological success of 

compensatory mitigation projects varies 

widely. Some compensatory mitigation 

projects fail to meet their objectives, 

while others do result in successful 

replacement of aquatic resource 

functions that are lost as a result of 

activities authorized by NWPs. We are 

committed to improving compliance for 

compensatory mitigation required for 

Department of the Army permits, 

including NWPs. District engineers have 

the flexibility to determine when 

compensatory mitigation should be 

required for activities authorized by 

NWPs. If it is not appropriate or 

practicable to require compensatory 

mitigation for a particular activity, and 

that activity will result in minimal 

adverse effects on the aquatic 

environment, then the district engineer 

may determine that compensatory 

mitigation is not necessary. Otherwise, 

if the proposed activity will result in 

more than minimal adverse effects on 

the aquatic environment after 

determining that compensatory 

mitigation is not appropriate or 

practicable, then an individual permit 

would be required. 

One commenter said that the NWPs 

do not distinguish between different 

types of waters, but combine waters 

when applying the acreage limit for the 

NWP. This commenter stated that the 

Corps needs to recognize that different 

types of waters often have different 

functions. 

The NWPs do recognize different 

types of waters. The terms and 

conditions of NWPs are often based on 

the characteristics of different types of 

waters. For example, NWP 39 does not 

authorize discharges of dredged or fill 

into non-tidal wetlands adjacent to tidal 

waters. 

One commenter said that the 

requirement for NWP activities to be 

single and complete projects should not 

be removed, citing the proposed 

changes to NWPs 13, 15, 18, and 19. 

This commenter stated that the 

requirement for single and complete 

projects does not appear outside of the 

Corps definition at 33 CFR 330.2(i). One 

commenter objected to the removal of 

the requirement in several NWPs to 

submit an avoidance/minimization 

statement with the pre-construction 

notification. 

The requirement that NWPs authorize 

single and complete projects applies to 

all NWPs. Limiting the NWPs to 

authorize only single and complete 

projects is a long-standing practice, and 

we are adding a new general condition 

(GC 28) to clarify that the NWPs only 

authorize single and complete projects. 

The requirement for an avoidance/ 

minimization statement that was in 

NWPs 39, 43, and 44 is not necessary, 

because we have modified NWP 39 to 

require pre-construction notification for 

all activities, and we are requiring preconstruction notification for all 

construction and expansion of storm 

water management facilities under NWP 

43. In addition, general condition 20 

requires permittees to avoid and 

minimize adverse effects to waters of 

the United State to the maximum extent 

practicable on the project site. When 

reviewing a pre-construction 

notification, the district engineer will 

determine whether sufficient avoidance 

and minimization of impacts to waters 

of the United States has occurred, and 

whether the activity complies with 

general condition 20. It is the 

responsibility of the district engineer to 

make this determination, and we do not 

believe it is appropriate to place that 

burden on the prospective permittee by 

requiring the submittal of a statement 

with the pre-construction notification. 

One commenter recommended that 

the Corps adopt an administrative 

appeal process for activities authorized 

by NWPs, which would provide for 

third party appeals. Another commenter 

said that compliance inspections should 

be conducted for a certain number of 

NWP activities per year. One 

commenter said that the Corps needs to 

do more enforcement and monitoring of 

activities authorized by NWPs. 

We do not believe it would be 

appropriate or necessary to establish an 

administrative appeal process for the 

NWP program, since the NWPs 

authorize only those activities that have 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. The administrative appeal 

process at 33 CFR part 331 applies only 

to individual permits and jurisdictional 

determinations, and does not provide 

for third party administrative appeals. 

Performance measures established for 

the Regulatory Program require our 

district offices to conduct compliance 

inspections for a proportion of general 

permit activities occurring in a given 

year. 

One commenter said that the Corps 

should retain a separate NWP for 

aggregate mining activities (the current 

NWP 44), and provide greater acreage 

limits, since the proposed modification 

of NWP 44 will have little utility for the 

aggregate mining industry. 

We do not believe it would be 

appropriate to issue another NWP for 

aggregate mining activities, with greater 

acreage limit. The acreage limit for NWP 

44 is intended to ensure that this NWP 

authorizes only those activities with 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. This NWP authorizes 

aggregate mining activities. 

Two commenters said that all 

references to excavation in the NWPs 

should cite 33 CFR 323.3(d) to clarify 

that not all excavation activities require 

section 404 permits. One commenter 

suggested adding a new general 

condition which would require 

submittal of a delineation of nonjurisdictional wetlands with the preconstruction notification for those 

NWPs authorizing development 

activities, so that states could be 

notified of these activities. One 

commenter said that NWPs should not 

authorize activities in springs, seeps, 

headwater streams, and fens. 

Many excavation activities result in 

discharges of dredged material that 

require section 404 permits. When 

reviewing pre-construction 

notifications, district engineers will 

determine whether an excavation 

activity results in a discharge of dredged 

material and requires a section 404 

permit, or whether a permit is not 

needed. It is not appropriate for the 

Corps to require prospective permittees 

to submit delineations of areas that are 

not waters of the United States with 

their pre-construction notifications. 

States that regulate these nonjurisdictional aquatic habitats should 


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address those concerns through their 

permit processes. The NWPs can be 

regionally conditioned to restrict or 

prohibit NWP activities in springs, 

seeps, headwater streams, and fens. 

One commenter requested that the 

Corps reissue NWP 26, which 

authorized discharges into headwaters 

and isolated waters, in accordance with 

the limits described in the December 13, 

1996 Federal Register notice. 

There are no plans to reissue NWP 26. 

This NWP expired on June 7, 2000. We 

have issued NWPs that have replaced 

NWP 26. 

Water Quality Certification/Coastal 

Zone Management Act Consistency 

Determination Issues 

One commenter said that the Corps 

should provide an opportunity for state 

and Tribal water quality certification 

agencies to participate early in the NWP 

reissuance process, to reduce potential 

conflicts during the water quality 

certification process. Another 

commenter requested clarification 

regarding enforcement of the NWPs, in 

cases where a provisional NWP 

verification is issued, but the permittee 

proceeds with work without receiving 

the individual water quality 

certification. This commenter asked 

whether the Corps or the state would 

initiate an enforcement action. One 

commenter objected to use of 

provisional NWP verifications in cases 

where water quality certification has not 

yet been issued for a particular NWP 

activity. 

We cannot begin coordination for 

water quality certification at an earlier 

time in the NWP reissuance process. 

States and Tribes need to see the 

proposed permit and general condition 

language, which is not available until 

the publication of the proposal in the 

Federal Register, in order to proceed 

with the certification process. We 

believe there is generally adequate time 

to complete the water quality 

certification process, however, where 

there is not, the Corps will issue only 

provisional verifications until the State 

or Tribe has completed its certification 

process; in this case, permittees are 

required to obtain individual 

certification directly from the State or 

Tribe before commencing work. 

If a provisional NWP verification is 

issued, the activity is not authorized by 

NWP until the required water quality 

certification is obtained or waived. If the 

project proponent begins the work 

before water quality certification is 

obtained or waived, the district engineer 

has full authority to initiate an 

enforcement action for the discharge of 

dredged or fill material into waters of 

the United States without a valid 

permit, in violation of the Clean Water 

Act. The district engineer will use his or 

her discretion, when determining 

whether to pursue an enforcement 

action. The use of provisional NWP 

verifications is necessary to provide 

timely responses to prospective 

permittees in cases where the State or 

Tribe has not yet completed its 

certification process. In addition, some 

States prefer not to issue general 

certifications for some or all NWPs. 

These States require a review of 

individual PCNs before issuing water 

quality certification for a particular 

activity. 

Discussion of Comments and Final 

Permit Decisions 

Nationwide Permits 

NWP 1. Aids to Navigation. There 

were no changes proposed for this NWP, 

and no comments were received. This 

NWP is reissued without change. 

NWP 2. Structures in Artificial 

Canals. There were no changes 

proposed for this NWP, and no 

comments were received. This NWP is 

reissued without change. 

NWP 3. Maintenance. We proposed to 

modify this NWP by removing the 

provisions for the restoration of uplands 

damaged by discrete events. We also 

proposed to add maintenance dredging 

or excavation of intakes, outfalls, and 

canals, which was authorized by NWP 

7. 

Several commenters expressed 

support for the proposed changes to this 

NWP. One commenter objected to the 

removal of the explicit references to the 

‘‘water quality’’ and ‘‘management of 

water flows’’ general conditions, stating 

that the removal of those references 

would change the intent of the NWP. 

One commenter recommended 

removing the language regarding the 

disposal of excavated material in upland 

areas, since it implies that excavation 

activities are regulated by the Corps 

under Section 404 of the Clean Water 

Act. Several commenters recommended 

adding language to clarify that 

excavation activities, or incidental 

fallback, do not require a section 404 

permit. One commenter said that the 

definition of ‘‘currently serviceable’’

should remain in the text of this NWP, 

instead of moving it to the ‘‘Definitions’’

section. 

Even though explicit references to 

general conditions were removed from 

its text, all general conditions, including 

those general conditions cited above, are 

still applicable to this NWP. The terms 

of this NWP require permittees to 

deposit and retain dredged or excavated 

materials in an upland area, unless the 

district engineer authorizes the use of 

another area. This term does not suggest 

that excavation activities not involving 

discharges of fill or dredge material into 

Section 404 waters are regulated by the 

Corps. Instead, it specifies the type of 

site that may receive dredged or 

excavated material under this NWP for 

activities that do require Section 404 

authorization. Excavation activities in 

waters of the United States require 

section 404 permits if they result in a 

discharge of dredged or fill material into 

those waters (see 33 CFR 323.2(d)). 

Activities that result in only incidental 

fallback do not require permits. Since 

the definition of ‘‘currently serviceable’’

is used in NWPs 41 and 47, it is more 

appropriate to have the definition in the 

‘‘Definitions’’ section, for easier 

reference. 

A couple of commenters objected to 

moving the provision authorizing the 

repair, rehabilitation, or replacement of 

structures or fills destroyed or damaged 

by discrete events to proposed NWP A, 

which requires pre-construction 

notification for all activities. These 

commenters said that the proposed 

change would hinder the ability of 

utility companies and transportation 

departments to quickly repair utility 

lines, roads, and other important 

infrastructure damaged or destroyed by 

severe storms. One commenter 

suggested adding another note to this 

NWP, to refer potential applicants to 

NWP 45 in cases where structures that 

have been made non-functional by some 

discrete event may qualify for repair, 

rehabilitation, or replacement. 

We have restored the language 

authorizing the repair, rehabilitation, or 

replacement of structures or fills 

destroyed or damaged by storms or 

other discrete events in paragraph (a) of 

NWP 3, and removed it from proposed 

NWP A (now designated as NWP 45). 

Because of this change, it is no longer 

appropriate to add a note to this NWP 

to refer to NWP 45. 

One commenter suggested that this 

NWP should not be used to authorize 

additional or new work, fill, riprap or 

structures that was not part of the 

original authorization. One commenter 

stated that the continued maintenance, 

repair, restoration, and replacement of a 

structure may represent ongoing 

impacts that are more than minimal, 

and may preclude restoration of 

environmental features at the project 

site. This commenter said that those 

types of activities should require ongoing mitigation. Another commenter 

said that this NWP should not be 

reissued, since its use results in more 

than minimal adverse impacts to the 


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aquatic environment. Another 

commenter suggested that this NWP 

should not authorize replacement of 

structures and fill, and that it should be 

restricted to repair or rehabilitation 

activities involving 50 percent or less of 

a structure. One commenter said that 

this NWP should authorize 

modifications to older structures that 

would help improve the aquatic 

environment. This commenter also 

recommended replacing the use of 

riprap with less environmentally 

damaging alternatives, such as 

bioengineered structures. 

This NWP does not authorize any 

significant increase in the original 

structure or fill. Only minor deviations 

necessary to conduct repairs and 

maintenance, or the placement of the 

minimum necessary riprap to protect 

the structure, are eligible for 

authorization under this NWP. Because 

of the nature of activities authorized by 

this NWP, as a general rule 

compensatory mitigation should not be 

required for these maintenance 

activities. If a Department of the Army 

permit was required to construct the 

original structure or fill, appropriate 

compensatory mitigation would have 

been required by the district engineer 

when the permit was issued, to offset 

the loss of aquatic resource functions 

and services resulting from the 

authorized work. Additional 

compensatory mitigation is usually 

unnecessary to maintain those 

structures or fills. The terms and 

conditions for NWP 3, plus any regional 

conditions imposed by division 

engineers, will ensure that this NWP 

authorizes only those activities with 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. We believe that this NWP 

should continue to authorize the 

replacement of structures or fills, or 

rehabilitation activities, since those 

activities usually result in minimal 

adverse effects on the aquatic 

environment. As for modifying this 

NWP to authorize changes to structures 

that would improve the aquatic 

environment, we believe it would be 

more appropriate for district engineers 

to authorize such changes through other 

permits. Changes to structures would 

require more thorough evaluation to 

ensure that net improvements to the 

aquatic environment will occur. The use 

of bioengineering methods to protect 

existing structures may not be very 

effective, because of the environmental 

conditions, such as water flows, near 

these structures. Riprap is usually the 

most effective means of protecting these 

structures, and the terms of this NWP 

require minimization of the footprint of 

the riprap. District engineers can 

consider bioengineering on a case-bycase basis, and authorize such activities 

as appropriate. 

One commenter said that this NWP 

should not authorize the maintenance of 

bank stabilization structures that are 

more than 300 feet long. One 

commenter suggested dividing 

paragraph (b) into two subparagraphs. 

One subparagraph would authorize 

debris and sediment removal and the 

other subparagraph would authorize 

riprap. This commenter also indicated 

that this NWP should be modified to 

limit the removal of sediment to the 

minimum necessary to ‘‘restore the bed 

of the waterway to its natural grade.’’

This NWP authorizes only activities 

that repair or return an activity to 

previously existing conditions. We do 

not believe it is necessary to further 

restrict this NWP to limit maintenance 

of bank stabilization structures. 

Dividing paragraph (b) into two 

subparagraphs is not needed, since the 

riprap is typically used to protect the 

structure once the accumulated 

sediment has been removed. The 

purpose of this NWP is to authorize 

restoring structures or fills to their 

original condition. It may not be 

possible to determine the ‘‘natural 

grade’’ of the waterway, and this may 

not have been the condition at the time 

the structure or fill was originally 

authorized. Therefore, we believe the 

current language is more appropriate. 

Several commenters recommended 

modifying this NWP to authorize both 

permanent and temporary impacts of 

maintenance activities, since the 

requirement to submit a preconstruction notification for temporary 

impacts would significantly increase 

regulatory and administrative burdens 

on the applicants and the Corps, 

without any environmental benefits or 

added value to the process. 

We agree, and have added a new 

paragraph (c) to this NWP to address 

temporary structures, fills, and work 

necessary to conduct the maintenance 

activities authorized by this NWP. 

Several commenters objected to the 

requirement to provide information 

about original design capacities and 

configurations of the structures and 

canals as part of the pre-construction 

notification for the proposed activity. 

These commenters stated that this 

information may not exist or be readily 

available, particularly for old facilities 

and structures. These commenters 

recommended that the information be 

required only where it is reasonably 

available. Alternatively, the commenters 

proposed retaining the language 

regarding the project not causing more 

than minimal changes to the flow 

characteristics of the stream, or 

increased flooding, instead of 

specifically requiring original design 

information. 

The provision to require information 

regarding the original design capacities 

and configurations of structures and 

other features is only applicable when 

maintenance dredging is proposed. We 

believe that this information can be 

developed fairly easily, since the 

capacities and configurations of the 

outfalls, intakes, impoundments, and 

canals can be developed or inferred by 

examining the existing facilities, in 

cases where historical documentation is 

not available. 

Several commenters expressed 

opposition to the terms of the NWP that 

limit the removal of sediment to the 

minimum necessary to restore the 

waterway to the approximate 

dimensions that existed when the 

structure was built. Another commenter 

recommended changing the language to 

require restoration of the project to its 

original design conveyance capacity. 

The current language is adequate to 

ensure that this NWP authorizes 

necessary sediment removal activities 

that result in minimal adverse effects on 

the aquatic environment. We believe 

that the limits for the removal of 

sediments should be established with 

regard to the conditions of the waterway 

itself at the time of project construction 

rather than to the specifications of the 

structures. 

One commenter requested 

clarification as to whether the 200 foot 

limit on the removal of accumulated 

sediment is subject to the 1⁄2 acre limit 

found in other NWPs. 

This NWP does not have a 1⁄2 acre 

limit. If this NWP is used with another 

NWP to authorize a single and complete 

activity, then the activity is subject to 

the requirements of general condition 

24, Use of Multiple Nationwide Permits. 

If this NWP is used with an NWP with 

a 1⁄2 acre limit, such as NWP 39, then 

the 1⁄2 acre limit would apply to the 

single and complete project. 

One commenter requested the 

addition of ‘‘flood conveyance 

channels’’ to paragraph (b) of this NWP, 

instead of requiring the use of NWP 31. 

Another commenter stated that 

additional routine maintenance 

activities, which are authorized by 

NWPs 31 and 43, should be 

consolidated under NWP 3. One 

commenter suggested adding language 

to clarify that this NWP authorizes 

emergency repairs of submarine fiber 

optic cables. 


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NWP 31 is being reissued to authorize 

maintenance activities for existing flood 

control facilities, including flood 

conveyance channels. Therefore, we do 

not believe it is necessary to modify 

NWP 3 to authorize those activities. We 

are also reissuing NWP 43 to authorize 

maintenance activities for storm water 

management facilities. Emergency 

repairs of submarine fiber optic cables 

may be authorized by this NWP, 

provided the activity meets its terms 

and conditions. 

One commenter indicated that small 

sediment removal projects should not 

require pre-construction notification. 

Another commenter stated that preconstruction notification should not be 

required for the placement of riprap to 

protect structures. A few other 

commenters said that pre-construction 

notification should not be required for 

activities authorized by paragraph (b) of 

this NWP. In contrast, one commenter 

suggested that pre construction 

notification should be required for all 

activities covered under NWP 3. 

We believe that the pre-construction 

notification requirements for this NWP 

are appropriate. Pre-construction 

notification is required for those 

activities that may have the potential to 

cause more than minimal adverse effects 

on the aquatic environment. 

One commenter recommended that 

sediments should be sampled to project 

depth prior to dredging, and that sandy 

sediment suitable for nearshore disposal 

should be returned to the littoral system 

down drift of the project site. 

Regulatory Guidance Letter 06–02 

establishes that testing of dredge 

material is not required when there is 

reason to believe that no contaminants 

are present in the material. Therefore, a 

standard requirement to sample and test 

sediments to be dredged under NWP 3 

would not be appropriate. The 

nearshore disposal of sandy sediments 

should be addressed through separate 

authorizations, such as individual 

permits, since those activities may have 

more than minimal adverse 

environmental effects. 

One commenter indicated that 

significant wetland habitat development 

has been observed on sediments left in 

place for many years within canals 

associated with outfall and intake 

structures. That commenter stated that 

exempting maintenance activities in 

such canals from the 200 linear foot 

restriction may have a significant 

impact on the wetland habitats in these 

channels. Another commenter suggested 

that the placement of riprap or any other 

bank stabilization material in, or the 

removal of accumulated sediment from, 

any special aquatic site should be 

prohibited. 

Since this NWP only authorizes 

activities that restore an area to its 

previous condition, we do not believe it 

is appropriate to prohibit the 

maintenance of structures or fills simply 

because a special aquatic site may have 

formed in these areas. District engineers 

will review pre-construction 

notifications to determine if the 

placement of riprap or the removal of 

accumulated sediments in special 

aquatic sites would cause more than 

minimal impact, and use discretionary 

authority to address situations where 

they would. 

One commenter stated that affected 

tribes should be informed of all preconstruction notifications for this NWP 

that involve in-water work and be 

provided 30 days to provide comments. 

This commenter also suggested that 

while bioengineered projects are less 

environmentally damaging than riprap 

and offer benefits to salmon, the 

presence of wood in some bank 

protection structures has the potential to 

interfere with treaty fishing access by 

preventing the use of nets. 

Coordination of proposed NWP 3 

activities with Indian tribes is more 

appropriately addressed through 

government-to-government 

consultations with Corps districts. 

General condition 16, Tribal Rights, 

does not allow an activity or its 

operation to impair reserved tribal 

rights, including but not limited to, 

reserved water rights and treaty fishing 

and hunting rights. Compliance with 

this general condition, along with 

coordination with interested Indian 

Tribes, will help protect tribal rights. 

One commenter suggested that the 

placement of riprap should be the 

minimum necessary to protect the 

structure, in order to reduce adverse 

effects to habitat-forming processes 

within waterbodies, such as salmon 

habitat. Another commenter said that 

this NWP should not authorize 

maintenance work on culverts that fail 

to meet appropriate standards for the 

upstream and downstream passage of 

fish, or culverts that do not allow for the 

downstream passage of substrate and 

wood. 

The terms and conditions of this NWP 

limit the placement of riprap to the 

minimum necessary to provide adequate 

erosion protection. Other NWP general 

conditions, such as general condition 17 

for endangered species, may provide 

additional protection for species of 

concern, as well as their habitat. General 

condition 2 prohibits activities which 

could disrupt the necessary life cycle 

movements of aquatic species. 

One commenter stated that preconstruction notifications should be 

required for all NWP 3 activities to 

ensure compliance with its terms and 

conditions. Another commenter stated 

that the Corps should carefully review 

all maintenance applications to ensure 

that the area impacted is not larger than 

needed to complete the maintenance 

activities, and that no additional 

impacts are authorized or conducted. 

We do not agree that pre-construction 

notification should be required for all 

activities. The terms and conditions of 

this NWP are adequate to ensure that it 

authorizes only those activities with 

minimal adverse effects on the aquatic 

environment. Where there are concerns 

for the aquatic environment, division 

engineers can regionally condition this 

NWP to require pre-construction 

notification or other measures. 

One commenter said that streams near 

roads may migrate from their original 

location and compromise the road. This 

commenter said that for those 

situations, this NWP should authorize 

relocation of the stream back to its 

original location. The commenter also 

indicated that small channel 

realignments should be authorized to 

properly convey the water into culverts. 

This NWP does not authorize new 

stream channelization or stream 

relocation projects. Those activities may 

be authorized by other Department of 

the Army permits. 

This NWP is reissued with the 

modifications discussed above. 

NWP 4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. We proposed to remove 

the provision for shellfish seeding, since 

we proposed to modify NWP 27 to 

authorize this activity. No comments 

were received. This NWP is reissued as 

proposed. 

NWP 5. Scientific Measurement 

Devices. We proposed to remove the 

pre-construction notification 

requirement for discharges of 10 to 25 

cubic yards for the construction of small 

weirs and flumes, but retain the 25 

cubic yard limit for such construction. 

Several commenters supported this 

NWP and the proposed removal of the 

pre-construction notification 

requirement on the basis that activities 

authorized under this NWP result in 

minimal impacts. Another commenter 

agreed with the removal of the preconstruction notification requirement 

for discharges of 10 to 25 cubic yards for 

construction of weirs and flumes 

because it will facilitate the 

implementation of water quality 

improvement projects sponsored by 

Federal, State, and local agencies, as 

well as the scientific community. Two 


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commenters objected to the removal of 

the pre-construction notification 

threshold. One commenter 

recommended conditioning this NWP to 

ensure that authorized activities do not 

interfere with the movements of 

organisms within watercourses or 

prevent ingress or egress of aquatic 

organisms. 

Based on our past experience with 

this NWP, we believe the removal of the 

pre-construction notification 

requirement for discharges of 10 to 25 

cubic yards for the construction of small 

weirs and flumes is appropriate. Project 

proponents are required to comply with 

all applicable general conditions, 

including general condition 2, Aquatic 

Life Movements, which prohibits 

activities from substantially disrupting 

life cycle movements of aquatic 

organisms. Further, we believe the 

district engineer’s authority to issue 

case-specific special conditions and to 

impose regional conditions to require 

pre-construction notifications for certain 

activities, such as activities involving 

specified quantities of fills for the 

construction of small weirs and flumes, 

is adequate to address local concerns 

regarding potential adverse effects to the 

movement of aquatic organisms. 

One commenter said that the NWP 

should have a condition requiring all 

temporary devices to be removed when 

the devices will no longer be used. This 

commenter also asked whether this 

NWP authorizes the installation of 

single measurement devices or multiple 

measurement devices. 

The removal of temporary fills is 

required by general condition 13. The 

NWP authorizes single and complete 

scientific measurement device projects. 

Scientific measurement devices with 

independent utility can be authorized 

by separate NWP authorizations. 

This NWP is reissued as proposed. 

NWP 6. Survey Activities. We 

proposed to modify this NWP to add 

exploratory trenching to the list of 

authorized activities and to authorize 

the construction of temporary pads used 

for survey activities, provided the 

discharge does not exceed 25 cubic 

yards. 

Two commenters supported the 

proposed modifications and one 

commenter said that the NWP would 

result in more than minimal impacts to 

the aquatic environment. One 

commenter stated that there should be 

a 1⁄4 acre limit for exploratory trenching. 

This commenter also suggested 

imposing a 25 cubic yard limit on all 

activities authorized by this NWP. 

It has been our experience that 

exploratory trenching results in minimal 

adverse effects on the aquatic 

environment, and this NWP has been 

conditioned to require restoration of the 

trenched area upon completion of work. 

Since most impacts associated with 

exploratory trenches are temporary, an 

acreage limit is not necessary. Division 

engineers may impose regional 

conditions to require pre-construction 

notifications or specific limits for 

certain activities. District engineers may 

also exercise discretionary authority and 

require an individual permit if a 

proposed activity would result in more 

than minimal adverse effects on the 

aquatic environment. It is unnecessary 

to impose a 25 cubic yard limit on all 

discharges authorized by this NWP, 

since most of these discharges are 

temporary. Temporary fills must be 

removed upon completion of the work, 

in accordance with the requirements of 

general condition 13. Any permanent 

fills are likely to be small in size, 

because of the types of activities 

authorized by this NWP. 

One commenter suggested adding 

language regarding the backfilling of the 

exploratory trench. Some commenters 

stated that the definition of ‘‘exploratory 

trenching’’ should include more 

prescriptive details such as benchmarks, 

width, and depth. 

We are conditioning this NWP to 

require permittees to backfill the top 6 

to 12 inches of exploratory trenches 

constructed in wetlands with topsoil 

from the trench. This change will bring 

consistency with the terms of other 

NWPs that authorize trenching 

activities. We do not believe that it is 

necessary to include prescriptive limits 

on the trench dimensions. However, 

division engineers may choose to 

establish such limits through regional 

conditions. 

One commenter suggested that the 25 

cubic yard limit for discharges 

associated with temporary pads should 

be removed. Another said that the 25 

cubic yard limit should apply to the 

cumulative amount of material for 

multiple drill sites. Two commenters 

said that limits should be placed on the 

amount of such discharges because a 

state may not issue water quality 

certification for this NWP. 

The 25 cubic yard limit is necessary 

to help ensure that the NWP authorizes 

only activities with minimal adverse 

effects on the aquatic environment. It 

also provides a suitable limit on the 

quantity of discharge necessary for 

construction of these temporary pads. 

The cubic yard limit for temporary pads 

applies to a single and complete project, 

as defined at 33 CFR 330.2(i). If a state 

does not issue water quality certification 

for this NWP, an individual water 

quality certification must be obtained or 

waived for each activity before it is 

authorized in that state. 

One commenter stated the NWP 

should also authorize temporary access 

roads. Such work may qualify for the 

404(f) exemption for temporary mining 

roads or could be authorized by NWP 

33. 

The NWP is reissued with the 

modification discussed above. 

NWP 7. Outfall Structures and 

Associated Intake Structures. We 

proposed to move maintenance 

dredging and excavation activities to 

NWP 3. We also proposed to change the 

title of this NWP to more clearly 

describe what it authorizes. 

Several commenters supported 

moving maintenance dredging and 

excavation activities to NWP 3, while 

one commenter objected to the proposed 

change. One commenter said this NWP 

should require pre-construction 

notification only for section 10 

activities, since Clean Water Act 

authorization for these structures is 

already provided through the permit 

process under Section 402 of the Clean 

Water Act. One commenter stated that 

construction and maintenance of outfall 

structures should not include bank 

stabilization structures. 

Outfall structures and associated 

intake structures require section 404 

authorization if they involve discharges 

of dredged or fill material into waters of 

the United States. Sections 404 and 402 

of the Clean Water Act address different 

types of discharges. In addition, the 

permitting criteria under section 404 

differ from those of section 402. In 

addition, some activities authorized by 

this NWP may be exempt from section 

402 permit requirements. The preconstruction notification requirement is 

necessary to ensure that activities 

authorized by this NWP will have no 

more than minimal adverse impacts to 

the aquatic environment. Bank 

stabilization activities are not 

authorized by this NWP but may be 

authorized by NWP 13 or other types of 

permits. 

One commenter suggested adding a 

provision to require intake structures 

constructed for withdrawing cooling 

water to adhere to requirements 

contained in Section 316(b) of the Clean 

Water Act. Another commenter 

suggested that this NWP should include 

a reference to the U.S. Environmental 

Protection Agency’s section 316(b) 

implementation initiative and require 

incorporation of Best Technology 

Available methods developed from this 

initiative. This commenter also said that 

intake structures should utilize passive 

screens with openings not to exceed one 

centimeter (or one millimeter in waters 


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having anadromous fish), with a 

maximum intake velocity of 0.5 feet per 

second. 

Section 316(b) of the Clean Water Act 

is implemented through (and only 

applies to) permits issued pursuant to 

Section 402. Thus, any structure that is 

in compliance with regulations issued 

under the NPDES program (Section 402) 

must also be in compliance with 

regulations issued under Section 316(b). 

Specific suggestions regarding 

technology choices for intake structures 

are more appropriately addressed 

through other permit authorities, such 

as the 402 program. Activities 

authorized by this NWP may require 

other Federal, State, or local permits or 

licenses. 

One commenter suggested adding 

modifications of existing intakes as an 

authorized activity, for cases where 

intake structure modifications are 

required by rules recently promulgated 

under Section 316(b) of the Clean Water 

Act. Another commenter recommended 

adding a note to refer applicants to NWP 

3 for future maintenance activities. 

In the first sentence of this NWP, we 

have added the phrase ‘‘or 

modification’’ after the word 

‘‘construction. It is important to note 

that this NWP only authorizes the 

construction or modification of intake 

structures that are associated with 

outfall structures. This would include 

cooling water intake structures where 

the heated cooling water is subsequently 

discharged back into the waterbody 

from which is was withdrawn. Adding 

a note referencing NWP 3 for future 

maintenance activities is inappropriate, 

since there may be outfall structure 

maintenance activities that do not 

qualify for NWP 3 authorization. 

One commenter requested 

clarification that this NWP authorizes 

only those activities that require permits 

under Section 404 of the Clean Water 

Act and/or Section 10 of the Rivers and 

Harbors Act of 1899. This commenter 

said that the current text of this NWP 

indicates that all outfall and associated 

intake structures that require section 

402 permits would also require an NWP 

authorization. 

This NWP authorizes outfall 

structures and associated intake 

structures that require authorization 

under Section 404 of the Clean Water 

Act and/or Section 10 of the Rivers and 

Harbors Act of 1899. If the construction 

or modification of an outfall structure or 

associated intake structure that requires 

a section 402 permit does not involve 

discharges of dredged or fill material 

into waters of the United States or 

structures or work in navigable waters 

of the United States, then a Corps 

permit is not required. 

One commenter recommended 

conditioning this NWP to require intake 

structures to be marked in a manner that 

will reduce hazards to navigation during 

and after construction. Another 

commenter said that this NWP should 

not authorize dredging operations 

during fish spawning seasons. One 

commenter said that this NWP should 

prohibit the stockpiling of excavated 

materials where sediment may erode to 

surface waters. A commenter asserted 

this NWP should be conditioned to 

prohibit exposure of surface waters to 

wet concrete, which may be toxic to 

aquatic organisms. 

General condition 1 states that any 

safety lights and signals prescribed by 

the U.S. Coast Guard, through 

regulations or otherwise, must be 

installed and maintained. This 

condition adequately addresses 

potential hazards to navigation. 

Maintenance dredging associated with 

outfall structures and their intake 

structures may be authorized by NWP 3 

or another type of permit. General 

condition 3 states that activities in 

spawning areas that occur during the 

spawning seasons must be avoided to 

the maximum extent practicable. 

General condition 12 addresses 

requirements for soil erosion and 

sediment controls. Although concrete 

may be toxic under certain 

circumstances, it is generally not 

considered to have toxic pollutants 

present in toxic amounts. Therefore, its 

use is not generally prohibited by 

general condition 6, Suitable Materials. 

One commenter said that agency 

coordination should be required for the 

construction of intake structures, 

because those structures may impinge 

and entrain larval fish. 

We do not believe it is necessary to 

require agency coordination for the 

construction of intake structures. For 

cooling water intake structures, this 

issue is already addressed by the 

Section 402 program. For other types of 

intakes, it would be more appropriate to 

address concerns regarding the 

impingement and entrainment of larval 

fish through regional conditions or 

special conditions. Division and district 

engineers, in consultation with resource 

agencies, can develop species-specific 

regional or special conditions to protect 

larval fish. 

This NWP is reissued with the 

modification discussed above. 

NWP 8. Oil and Gas Structures on the 

Outer Continental Shelf. We proposed 

to clarify that pre-construction 

notification is required for all activities 

authorized by this NWP. No comments 

were received. This NWP is reissued as 

proposed. 

NWP 9. Structures in Fleeting and 

Anchorage Areas. There were no 

changes proposed for this NWP. One 

commenter said that moorage structures 

may preclude the continued exercise of 

Tribal fishing rights. This commenter 

also asked that the Corps consult with 

Indian Tribes that utilize these areas for 

fishing, and requested that preconstruction notification be required for 

all activities authorized by this NWP. 

General condition 16 states that NWP 

activities cannot impair reserved tribal 

rights. Division and district engineers 

can consult with Tribes to develop 

regional conditions that will further 

ensure that tribal rights are not impaired 

by this NWP. Division engineers can 

regionally condition this NWP to 

require coordination with Tribes when 

proposed activities may affect Tribal 

lands or trust resources. 

The NWP is reissued without change. 

NWP 10. Mooring Buoys. There were 

no changes proposed for this NWP. One 

commenter stated that individual 

mooring buoys can interfere with the 

exercise of Tribal fishing rights and 

should not be authorized by NWP. This 

commenter also said that preconstruction notification should be 

required for all activities authorized by 

this NWP, and the Corps should consult 

with Indian Tribes with usual and 

accustomed fishing grounds. Another 

commenter suggested limiting mooring 

buoys to areas outside of Federal 

navigation channel or dredged material 

placement areas. 

General condition 16 states that NWP 

activities cannot impair reserved tribal 

rights. Division and district engineers 

can consult with Tribes to develop 

regional conditions that will ensure that 

tribal fishing rights are not impaired by 

activities authorized by this NWP. 

District and division engineers will 

consider the need to add regional 

conditions or case-specific conditions 

where necessary to protect tribal rights. 

Prohibiting the placement of mooring 

buoys in Federal navigation channels or 

dredged material placement areas is not 

desirable. There are occasions where it 

may be appropriate to place mooring 

buoys in these areas on a permanent or 

temporary basis, where the adverse 

effects on navigation and other public 

interest review factors are minimal. 

Mooring buoys authorized by this NWP 

must comply with general condition 1, 

Navigation. Division engineers may also 

add regional conditions to this NWP to 

prohibit the placement of mooring 

buoys in certain Federal navigation 

channels or other areas of concern. 

The NWP is reissued without change. 


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NWP 11. Temporary Recreational 

Structures. There were no changes 

proposed for this NWP. One commenter 

suggested that temporary buoys, 

markers, small floating docks, and 

similar structures can interfere with the 

exercise of treaty fishing access and, 

therefore, in an area subject to treaty 

fishing, notification to affected tribes is 

required. The commenter further stated 

that regional conditions should be 

added to require that such structures 

shall be removed from salmon spawning 

areas prior to commencement of the 

spawning season. Another commenter 

suggested that temporary recreation 

structures may come into conflict with 

Tribal fisheries and that preconstruction notification should be 

required. In addition, consultation with 

Indian Tribes with usual and 

accustomed fishing grounds in the area 

should also be conducted. 

This NWP cannot authorize any 

activity that may impair reserved tribal 

rights, including, but not limited to, 

reserved water rights and treaty fishing 

and hunting rights (see general 

condition 16). District and division 

engineers will consider the need to add 

regional conditions or case-specific 

conditions where necessary to protect 

such tribal rights. 

One commenter recommended 

conditioning the NWP to require 

temporary recreation structures to be 

removed within seven days after the use 

has been discontinued, instead of the 30 

days specified in the NWP. One 

commenter asserted that the required 

approval from the reservoir manager 

should be in writing. 

Shorter time periods for removal can 

be imposed through regional 

conditioning, or through special 

conditions provided in NWP 

verifications. The process for approving 

buoys or markers at Corps of Engineers 

reservoirs is at the discretion of the 

reservoir manager. 

The NWP is reissued without change. 

NWP 12. Utility Line Activities. We 

proposed to modify this NWP by 

removing the provisions authorizing the 

construction of permanent and 

temporary access roads and simplifying 

the pre-construction notification 

thresholds. Several commenters 

supported all proposed changes to this 

NWP. 

One commenter recommended 

modifying this NWP to explicitly 

include utility line relocation, in 

addition to utility line construction, 

maintenance, and repair. Two 

commenters suggested reducing the 

authorized duration of temporary 

sidecasting. One of these commenters 

said that four weeks is sufficient time 

for temporary sidecasting, and the other 

commenter recommended a time limit 

of 30 days. One commenter said that 

this NWP should require all trenched 

material to be returned to the trench as 

backfill, not just the upper 6 to 12 

inches, to sustain groundwater 

hydrology and prevent drainage of 

wetlands and other waters of the United 

States. One commenter requested that 

total impacts at the site be limited to 3⁄10

acre. 

This NWP authorizes the relocation of 

utility lines, which is covered by the 

construction, maintenance, and repair 

activities authorized by this NWP. We 

believe that three months is an 

appropriate time frame for temporary 

sidecasting of excavated material into 

waters of the United States. Division 

engineers can regionally condition this 

NWP to reduce the authorized period of 

temporary sidecasting, to further ensure 

minimal adverse effects. In response to 

a pre-construction notification, district 

engineers can add special conditions to 

the NWP authorization to reduce the 

length of time temporary sidecasting is 

authorized. We do not agree that it is 

necessary to require that all trenched 

material be returned to the trench to 

maintain pre-construction hydrology. 

The NWP explicitly prohibits 

backfilling the trench in a manner that 

would result in a french drain effect, 

and drain nearby waters. We believe the 

1/2 acre limit for this NWP is sufficient 

to ensure that it authorizes only those 

activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. This 

limit applies to the total discharges 

associated with the single and complete 

project. 

Several commenters supported the 

proposed pre-construction notification 

thresholds for this NWP, stating that 

they are simpler than the current 

thresholds and would capture many of 

those utility line activities that required 

pre-construction notification under the 

2002 NWP. A couple of commenters 

recommended retaining the preconstruction notification thresholds of 

the NWP 12 issued in 2002. A number 

of commenters said that the preconstruction notification for temporary 

losses of greater than 1⁄10 acre of water 

of the United States should be 

eliminated. Some of these commenters 

stated that this pre-construction 

notification threshold is confusing, 

because it is not consistent with the 

definition of ‘‘loss of waters of the 

United States.’’ Other commenters 

recommended changing the phrasing of 

this pre-construction notification 

threshold from ‘‘temporary loss’’ to 

‘‘temporary impact’’ to provide 

consistent terminology for the NWPs. 

Several commenters said that the 1⁄10

acre pre-construction notification 

threshold for temporary losses should 

be eliminated, because it is not 

necessary to ensure minimal adverse 

effects and it is not consistent with the 

pre-construction notification thresholds 

of other NWPs. One commenter 

indicated that the pre-construction 

notification threshold for temporary 

losses would result in a dramatic 

increase in the numbers of preconstruction notifications submitted to 

the Corps. Another commenter stated 

that this pre-construction notification 

threshold would remove incentives for 

project proponents to minimize 

temporary impacts. Several commenters 

said that requiring pre-construction 

notifications for temporary losses 

greater than 1⁄10 acre would increase the 

number of wetland delineations 

required to be submitted with those 

notifications. 

One commenter asked if an activity 

resulting in impacts of 1⁄10 acre or less 

to special aquatic sites, including 

wetlands, would require preconstruction notification. Another 

commenter said that there may be utility 

line activities resulting in the loss of 

less than 1⁄10 acre that may result in 

more than minimal adverse effects on 

the aquatic environment. One 

commenter objected to the removal of 

the pre-construction notification 

requirement for activities that include 

mechanized landclearing of forested 

wetlands, stating that this may result in 

significant habitat loss of forested 

wetlands and a significant permanent 

loss of forested wetland functions. One 

commenter recommended requiring preconstruction notifications for activities 

that may impact fish passage. 

We are restoring the pre-construction 

notification thresholds that were in the 

NWP 12 issued in 2002, so that district 

engineers will be able to conduct caseby-case review for certain utility line 

activities that have the potential to 

result in more than minimal adverse 

effects on the aquatic environment. Preconstruction notification will be 

required if any of the following criteria 

are met: (1) The activity involves 

mechanized land clearing in a forested 

wetland for the utility line right-of-way; 

(2) a section 10 permit is required; (3) 

the utility line in waters of the United 

States, excluding overhead lines, 

exceeds 500 feet; (4) the utility line is 

placed within a jurisdictional area (i.e., 

water of the United States), and it runs 

parallel to a stream bed that is within 

that jurisdictional area; (5) discharges 

that result in the loss of greater than 1⁄10- 

acre of waters of the United States; (6) 


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permanent access roads are constructed 

above grade in waters of the United 

States for a distance of more than 500 

feet; or (7) permanent access roads are 

constructed in waters of the United 

States with impervious materials. 

Discharges resulting in temporary losses 

of waters only will no longer trigger a 

pre-construction notification 

requirement, unless they trigger one of 

the criteria above. 

Division engineers can regionally 

condition this NWP to require preconstruction notification for other 

utility line activities, if there are 

concerns for the aquatic environment or 

public interest that warrant lower preconstruction notification thresholds, 

such as endangered or threatened 

species, or impacts to forested wetlands. 

General condition 2, Aquatic Life 

Movements, requires permittees to not 

disrupt necessary life cycle movements 

of aquatic organisms, such as fish. 

Several commenters requested that 

the definition of single and complete 

project, as applied to utility line 

projects, be modified to state that the 

1⁄10 acre pre-construction notification 

threshold applies to the entire utility 

line and not to each separate water or 

wetland crossing. 

The requirement to submit a preconstruction notification for those 

utility line activities listed in the 

‘‘Notification’’ paragraph of this NWP 

applies to a single and complete project, 

as defined at 33 CFR 330.2(i). In the case 

of a utility line, a single and complete 

project consists of a single crossing of a 

water of the United States, or more than 

one crossing at the same location (see 

the definition of ‘‘single and complete 

project’’). 

Several commenters expressed 

opposition to the proposed removal of 

access roads from this NWP, especially 

the construction of temporary access 

roads, which would require 

authorization under NWP 33 and 

require pre-construction notification for 

all activities. One commenter supported 

the use of NWPs 14 and 33 for utility 

line access roads, because it would 

provide greater flexibility in the 

locations where these roads could be 

built. Most of these commenters 

expressed concern that requiring preconstruction notification for all 

temporary access road construction 

activities will significantly increase the 

regulatory burdens on permittees and 

most likely cause substantial delays in 

utility line projects. One commenter 

said that access roads should be 

retained in this NWP, with a 1⁄2 acre 

limit for the utility lines and a 1⁄2 acre 

limit for the access road. Several 

commenters stated that requiring 

authorization of permanent access roads 

through NWP 14 could result in impacts 

greater than 1⁄2 acre at the site of a single 

and complete project. One commenter 

said that utility line substations should 

be authorized by another NWP, because 

these facilities can be constructed at a 

more distant location from the utility 

line. 

After considering these comments, as 

well as the probable negative effects that 

this proposed change would have on 

essential services such as the 

distribution of energy to the public, we 

have decided to retain authorization of 

permanent and temporary access roads 

in NWP 12. We have added a paragraph 

to authorize access roads, using 

language from the NWP 12 issued in 

2002. We are also putting Note 2 back 

into this NWP. This note states that 

access roads used for both construction 

and maintenance are authorized by this 

NWP. This note has been adapted from 

the NWP 12 issued in 2002, but revised 

to clarify that temporary access roads 

may be authorized by NWP 12, provided 

the area is restored to pre-construction 

elevations and revegetated as 

appropriate. To address concerns about 

temporary impacts to waters of the 

United States associated with utility 

line activities, we are adding explicit 

requirements to remove all temporary 

fills in their entirety, return affected 

areas to pre-construction elevations, and 

revegetate affected areas as appropriate. 

The 1⁄2 acre limit for this NWP applies 

to each single and complete utility line 

activity. There are not separate acreage 

limits for utility lines and access roads. 

Retaining authorization of access roads 

in this NWP, as well as authorization for 

utility line substations, will help 

provide effective authorization for 

utility line activities. 

One commenter recommended 

reformatting this NWP to be consistent 

with other NWPs. Another commenter 

suggested that the phrase ‘‘provided the 

activity does not result in the loss of 

greater than 1⁄2 acre of those waters’’ be 

deleted, since the 1⁄2 acre limit is 

indicated in the first paragraph of this 

NWP. One commenter said that 

mitigation should be required for all 

NWP activities. Another commenter 

stated that the NWP should clarify that 

mitigation banks may be used to provide 

compensatory mitigation for permanent 

adverse effects authorized by this NWP. 

The format of this NWP need not be 

consistent with the other NWPs, 

because of the authorized activities. We 

are retaining the reference to the 1⁄2 acre 

limit in the paragraph that authorizes 

utility line substations, to make it clear 

that any losses associated with this 

activity are included in the 1⁄2 acre limit. 

A similar reference to the 1⁄2 acre limit 

is also provided in the paragraph 

authorizing access roads. Mitigation 

requirements for this NWP will be 

established in accordance with general 

condition 20, Mitigation. This general 

condition states that mitigation banks 

may be used to provide compensatory 

mitigation for activities authorized by 

NWPs. 

One commenter suggested adding 

language to this NWP that would 

require sand and gravel excavated from 

a lake bed during trench excavation to 

be temporarily sidecast in a manner 

such that it would not be buried by 

material with finer grain sizes. Another 

commenter stated that this NWP should 

not be used to authorize utility line 

activities in streams that support 

salmon. 

Concerns for potential impacts to lake 

substrate are more appropriately 

addressed through either the special 

conditions added to an NWP 

authorization by the district engineer, or 

by regional conditioning of the NWP by 

division engineers. Potential impacts to 

salmon are also more appropriately 

addressed through regional conditions 

or the review of pre-construction 

notifications, including the district 

engineer’s use of discretionary authority 

and the addition of special conditions to 

the NWP authorization. 

One commenter said that this NWP 

should be conditioned to require 

placement of the utility line in the rightof-way of existing or proposed roads or 

at the narrowest section of wetlands or 

streams. This commenter also stated 

that the number of stream crossings 

should be limited to the minimum 

necessary. 

These concerns are addressed by 

general condition 20, Mitigation, which 

requires avoidance and minimization on 

the project site to the maximum extent 

practicable. It is not appropriate to 

condition this NWP to require utility 

lines to be placed in existing rights-ofway or at the narrowest sections of 

waters of the United States. Often it is 

not feasible to limit utility lines to these 

areas, and practicable alternatives are 

usually rather limited. Many utility 

lines need to be installed in areas 

without roads. 

One commenter said that this NWP 

should require communication or power 

poles to be upgraded to current 

standards to avoid detrimental impacts 

to migratory birds. This commenter also 

stated that this NWP should not 

authorize wind generating turbines. 

Design requirements for 

communication or power poles relative 

to migratory birds are more 

appropriately addressed through other 


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regulatory programs. Wind generating 

turbines are not considered to be utility 

lines. To the extent that the construction 

of wind generating turbines requires 

Department of the Army authorization, 

those activities may be authorized by 

individual permits, regional general 

permits, or other NWPs (e.g., NWP 25). 

NWP 12 is reissued with the 

modifications discussed above. 

NWP 13. Bank Stabilization. We 

proposed to modify this NWP to 

authorize bank stabilization activities in 

special aquatic sites, provided the 

prospective permittee submits a preconstruction notification. 

Several commenters expressed 

support for the proposed changes to this 

NWP. Several commenters stated that 

this NWP will result in more than 

minimal adverse effects to the aquatic 

environment, particularly for headwater 

streams, and that individual permits 

should be required for these activities. 

Other commenters stated that the linear 

limits of this NWP should be reduced 

and that the waivers to the linear foot 

and cubic yard limits should be 

removed to ensure that the NWP 

authorizes only those activities with 

minimal adverse effects on the aquatic 

environment. Several commenters 

stated that bank stabilization projects in 

excess of 500 feet or involving more 

than one cubic yard per running foot 

should be evaluated as individual 

permits, with opportunity for public 

review. 

The terms and conditions of this 

NWP, especially the pre-construction 

notification requirements, will help 

ensure that this NWP authorizes only 

those activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

500 linear foot and the one cubic yard 

limits must be waived in writing by the 

district engineer, or the NWP cannot be 

used to authorize activities that exceed 

these limits. Bank stabilization activities 

are often necessary to help protect 

property, as well as water quality. In 

response to a pre-construction 

notification the district engineer can 

add special conditions to the NWP 

authorization to ensure minimal adverse 

effects, or exercise discretionary 

authority and require another type of 

permit, such as an individual permit, for 

the activity. Division engineers can 

regionally condition this NWP to protect 

high value waters and other important 

resources. 

One commenter recommended 

modifying the text of this NWP to clarify 

that authorized activities are not limited 

to rivers and streams, but that this NWP 

can also be used in coastal areas. 

Several commenters stated that this 

NWP should not authorize impacts to 

special aquatic sites. One commenter 

recommended requiring a written 

waiver from the district engineer to 

authorize discharges of dredged or fill 

material into special aquatic sites. A few 

commenters said that mitigation should 

always be required for activities 

authorized by this NWP. 

This NWP can be used to authorize 

bank stabilization activities in all waters 

of the United States, including rivers, 

streams, and coastal areas. We do not 

believe it is necessary to modify the text 

of this NWP to list the types of 

waterbodies in which it can be used. 

Because many streams include or are 

bordered by special aquatic sites, 

precluding use of this permit in these 

areas significantly limits its usefulness. 

It may be beneficial to watersheds to 

stabilize eroding banks, even though 

small amounts of fringe wetlands or 

mudflats may be impacted by a bank 

stabilization activity. Therefore, bank 

stabilization activities involving 

discharges of dredged or fill material 

into special aquatic sites may be 

authorized by this NWP but preconstruction notification is required for 

all such activities, which will provide 

an opportunity for the district engineer 

to review those activities to ensure that 

any adverse effects on the aquatic 

environment are minimal. For 

additional assurance, we have added a 

new paragraph (d) to require a written 

waiver from the district engineer if the 

activity involves discharges of dredged 

or fill material into special aquatic sites. 

If a written waiver is not issued by the 

district engineer, then this NWP does 

not authorize such discharges. In 

response to a pre-construction 

notification, the district engineer will 

exercise discretionary authority if the 

proposed bank stabilization activity is 

in a special aquatic site and will result 

in more than minimal adverse effects on 

the aquatic environment. Division 

engineers may also regionally condition 

this NWP to prohibit discharges of 

dredged or fill material into special 

aquatic sites, where there are concerns 

for the aquatic environment or other 

public interest review factors. 

We do not believe compensatory 

mitigation should be required for all 

bank stabilization activities. In cases 

where the bank stabilization activity 

affects a special aquatic site, it may be 

appropriate for the district engineer to 

require compensatory mitigation. For 

bank stabilization activities in other 

waters of the United States, the district 

engineer may determine that it is not 

necessary to require compensatory 

mitigation. 

Several commenters stated that preconstruction notification should be 

required for all activities authorized by 

this NWP. One commenter suggested 

adding language to clarify that any 

requests for waivers of limits for this 

NWP would be approved or denied 

during the 45-day pre-construction 

notification review period. Another 

commenter requested that additional 

language be added to the text of the 

NWP to clarify that bank stabilization 

activities are authorized unless 

prohibited by the district engineer 

following review of the pre-construction 

notification. 

We do not agree that it is necessary 

to require pre-construction notification 

for all activities authorized by this 

NWP. Many small bank stabilization 

activities are conducted each year that 

result in minimal adverse effects on the 

aquatic environment. We have modified 

paragraph (a)(2) of general condition 27 

to clarify that NWP activities that 

require written waivers of limits are not 

authorized unless the district engineer 

issues the written waiver. In other 

words, a default NWP authorization 

does not occur after 45 days if the 

proposed activity requires a written 

waiver. The modification to general 

condition 27 is sufficient to address this 

concern, and it is not necessary to 

modify the text of this NWP. In the case 

of this NWP, all activities that require a 

pre-construction notification also 

require a written waiver. The Corps will 

do its best to process requests for such 

waivers within 45 days. 

One commenter stated that this NWP 

should not be used to authorize bank 

stabilization activities in waters of the 

United States inhabited by anadromous 

fish. One commenter stated that use of 

wood in bank stabilization projects may 

interfere with tribal rights, such as 

treaty fishing access, and therefore 

affected tribes should be notified of 

requests to use this NWP. Several 

commenters said interagency 

coordination should be conducted on all 

NWP 13 pre-construction notifications. 

Division engineers can regionally 

condition this NWP to restrict or 

prohibit its use in waters inhabited by 

anadromous fish. General condition 16, 

Tribal Rights, states that activities 

authorized by NWP cannot impair 

reserved treaty rights. Division and 

district engineers should consult with 

Tribes to develop regional conditions 

where necessary to ensure that tribal 

rights are adequately protected by this 

NWP. Division engineers can regionally 

condition this NWP to require 

coordination with Tribes when 

proposed NWP activities may affect 

Tribal lands or trust resources. General 


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condition 27, Pre-Construction 

Notification, sets out the requirements 

and procedures for interagency 

coordination for all NWPs; we do not 

believe additional requirements are 

necessary for this permit. 

A number of commenters requested 

clarification as to whether the linear and 

running foot limits in this NWP are 

applicable to the length of the bank or 

the length of the stream channel. 

Several commenters stated that the 

prohibition against stream 

channelization should be retained, 

while others recommended that it be 

removed because many bank 

stabilization activities could be 

considered stream channelization 

projects. One commenter stated that this 

NWP should not be used to authorize 

hardening of bank surfaces. A number of 

commenters also stated NWP 13 should 

only authorize vegetative or 

bioengineered stabilization methods and 

not bank hardening methods. One 

commenter recommended modifying 

this NWP to encourage bioengineered 

methods, or placement of riprap above 

the ordinary high water mark or high 

tide line, by not requiring preconstruction notification for such 

activities. Two commenters said that 

this NWP should be limited to 

bioengineering, living shoreline, or 

vegetative bank stabilization techniques, 

and that individual permits should be 

required for bank stabilization activities 

involving the placement of rip-rap and 

other hard armoring techniques. 

The linear foot and cubic yard limits 

apply to the length of the bank. We have 

modified paragraph (b) of this NWP to 

clarify that the 500 linear foot limit 

applies to the length of the bank 

stabilization activity, not the length of 

the stream segment. We are retaining 

paragraph (g), since stream 

channelization activities may result in 

more than minimal adverse effects on 

the aquatic environment. Bank 

stabilization activities differ from stream 

channelization activities in several 

ways. Bank stabilization reduces or 

eliminates erosion to prevent the loss of 

structures or adjacent property, and 

typically only one side of a stream is 

stabilized. The location and crosssection shape of the waterway is 

generally unaffected except for material 

placed along the stabilized bank. Stream 

channelization alters the length, 

location, and/or cross section shape of 

a stream channel. Stream channelization 

changes the hydraulic flow 

characteristics of the stream, reduces 

channel complexity and diversity, and 

can include bank stabilization on one or 

both banks of the channelized 

waterway. Stream channelization 

substantially reduces natural stream 

functions, while bank stabilization by 

itself does not. 

We do not agree that this NWP should 

be limited to vegetative or 

bioengineering techniques. In many 

areas, those techniques will not provide 

adequate protection to the bank, 

especially in those waters where banks 

are subjected to substantial wave 

energy, such as coastal shorelines. In 

those areas, hard bank stabilization 

techniques may be the only feasible 

option. The pre-construction 

notification requirements in this permit 

apply to specific situations not directly 

related to the type of bank stabilization 

used (e.g., hard or vegetative). We do 

not believe that the use of bank 

hardening methods, in and of itself, 

requires a pre-construction notification, 

nor do we believe that pre-construction 

notification requirements should be 

waived simply because a project that 

exceeds the 500 foot or one cubic yard 

limit, or that involves discharges into 

special aquatic sites, uses vegetative or 

bioengineering techniques. However, for 

such projects, the use of more 

environmentally friendly methods may 

well be a factor in the district engineer’s 

decision regarding whether or not to 

grant the requested waiver. 

One commenter suggested that in 

order to make the one cubic yard per 

running foot limit more practical for 

bank construction methods in streams of 

significant size, this limit should only 

apply to the amount of material placed 

from the ordinary high water mark to 

the streambed, and not to anything 

below or above those planes. 

Alternatively, the commenter suggested 

that this limit could be adjusted to 

increase proportionally with increasing 

channel depth at the ordinary high 

water mark, so that stream magnitude is 

taken into account. One commenter 

indicated that the language limiting the 

placement of erodible material may 

discourage plantings on riprap, since 

the soil used for those plantings could 

be washed away during high flows. One 

commenter said that NWP 13 should not 

be used with other permits. Another 

commenter suggested that this NWP be 

conditioned to prohibit the use of waste 

concrete for bank stabilization material, 

since it may adversely affect the 

environment. One commenter 

recommended modifying paragraph (d) 

(now designated as paragraph (e)) to 

state that the placement of material may 

not impair surface water flow into or out 

of any water of the United States. In the 

September 26, 2006, Federal Register 

notice, this paragraph referred only to 

wetlands. 

The cubic yard limit for this NWP, 

along with the waiver provision, is 

adequate to provide flexibility while 

protecting the aquatic environment and 

ensuring that authorized activities result 

in minimal adverse effects. We are 

retaining the language in paragraph (a), 

to help protect water quality. Bank 

stabilization projects involving the 

installation of plant materials on riprap 

may be authorized by this NWP, but 

erodible materials should be properly 

stabilized within the riprap or stabilized 

by other means. This NWP can be used 

with other NWPs to authorize single and 

complete projects that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment, 

provided the permittee complies with 

general condition 24, Use of Multiple 

Nationwide Permits. General condition 

6, Suitable Material, addresses the use 

of suitable material for discharges of 

dredged or fill material into waters of 

the United States. This general 

condition prohibits the use of materials 

that contain toxic pollutants in toxic 

amounts. We have modified paragraph 

(e) by replacing the word ‘‘wetland’’

with ‘‘water of the United States’’ to 

help ensure that surface water flows are 

maintained. 

This NWP is reissued with the 

modifications discussed above. 

NWP 14. Linear Transportation 

Projects. We proposed to modify this 

NWP to limit stream channel 

modifications to the minimum 

necessary to protect the linear 

transportation project and state that the 

NWP does not authorize temporary 

construction, access, and dewatering 

activities necessary to construct the 

linear transportation project. 

Several commenters supported our 

proposal to change the first sentence of 

this NWP to refer to ‘‘linear 

transportation projects’’ instead of 

‘‘linear transportation crossings.’’ One 

commenter said that this sentence 

should be consistent with the definition 

of ‘‘single and complete project.’’

We are retaining the proposed 

language in the first sentence of this 

NWP. However, in the case of linear 

transportation projects, a ‘‘single and 

complete project’’ consists of a single 

crossing of a water of the United States, 

or more than one crossing at the same 

location (see the definition of ‘‘single 

and complete project’’). 

One commenter recommended 

reducing the acreage limit to 1⁄3 acre. 

One commenter said that this NWP 

should not be used in tidal waters. 

Another commenter stated there should 

be a condition requiring culverts to 

allow for unimpeded upstream and 

downstream passage of fish as well as 


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the passage of substrate and wood 

expected to be carried by 100 year flow 

events. 

We do not agree that it is necessary 

to reduce the acreage limit to 1⁄3 acre for 

all activities authorized by this NWP. 

The 1⁄2 acre limit for losses of non-tidal 

waters and the 1⁄3 acre limit for losses 

of tidal waters, in addition to the preconstruction notification requirements 

and other general conditions, will 

ensure that this NWP authorizes linear 

transportation projects that result in 

minimal adverse effects on the aquatic 

environment. General condition 2, 

Aquatic Life Movements, states that no 

activity may disrupt the necessary life 

cycle movements of aquatic species, 

including those species that normally 

migrate through the area. General 

condition 9, Management of Water 

Flows, states that, to the maximum 

extent practicable, the activity must not 

restrict or impede the passage of normal 

or high flows, unless the primary 

purpose is to impound water. 

A large number of commenters 

objecting to the removal of the language 

regarding authorization of temporary 

construction, access, and dewatering 

activities necessary to construct the 

linear transportation project, because 

NWP 33 requires pre-construction 

notification for all activities. One 

commenter suggested that the Corps 

expressly state that all activities 

authorized previously under this NWP 

remain authorized. 

We have decided not to remove the 

language authorizing the temporary 

construction, access, and dewatering 

activities from this NWP. In addition, 

we have added a new paragraph to this 

NWP to help ensure that temporary 

impacts associated with NWP 14 

activities are minimized, and that 

temporary fills are removed and affected 

areas are returned to pre-construction 

elevations and revegetated as 

appropriate. 

One commenter said that this NWP 

should not authorize the construction of 

new transportation or spur projects, 

because potential future development 

activities might occur after the 

transportation project is constructed. 

One commenter stated that the NWP 

should be applicable only to the 

expansion, modification or 

improvement of existing linear 

transportation projects. One commenter 

recommended modifying the preconstruction notification thresholds to 

clarify whether temporary losses require 

pre-construction notification. 

This NWP authorizes the 

construction, expansion, modification, 

or improvement of linear transportation 

projects that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. It 

does not prohibit new projects simply 

because there may be future 

development activities. It would be 

impractical to condition use of this 

NWP on consideration of hypothetical 

effects of potential future activities. 

Such effects will be addressed through 

applicable permitting requirements if 

and when future activities are proposed. 

The acreage-based pre-construction 

notification threshold applies only to 

permanent losses of waters of the 

United States. However, preconstruction notification is also 

required for any discharges of dredged 

or fill material into special aquatic sites, 

whether those discharges are permanent 

or temporary. 

One commenter stated that this NWP 

should not authorize bridge footings, 

because they result in a significant 

impact to stream habitat and that edge 

habitat is lost to hardened banks. One 

commenter asked whether this NWP 

authorizes cul-de-sacs and hammerhead 

turnarounds. 

Bridge footings are necessary to 

construct certain types of linear 

transportation projects, and they usually 

result in minimal adverse effects on the 

aquatic environment. The preconstruction notification thresholds for 

this NWP will ensure that district 

engineers will review those activities 

with bridge footings that have the 

potential to result in more than minimal 

adverse effects on the aquatic 

environment. Bridge footings are 

generally confined to narrow stream 

segments, so only small amounts of edge 

habitat will be lost as a result of the 

construction of a bridge footing. In 

addition general condition 3, Spawning 

Areas, prohibits the physical 

destruction of important spawning areas 

that could result from these activities. 

Discretionary authority will be asserted 

in those cases where the construction of 

bridge footings will result in more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Cul-de-sacs and 

hammerhead turnarounds may be 

authorized by this NWP, as they are part 

of the street network used for 

transportation. 

Another commenter recommended 

adding storm water management 

features to the list of examples of 

activities authorized by this NWP. One 

commenter requested clarification as to 

whether stream modifications, 

encroachments, and relocations 

associated with highway construction 

are authorized. We received several 

comments on the proposed language 

limiting stream channel modifications 

to the minimum necessary to construct 

or protect linear transportation projects. 

One commenter objected to the 

proposal, stating that it would limit 

public transportation safety 

requirements by adding unnecessary 

restrictions. 

Storm water management features are 

authorized by this NWP, provided they 

are integral features of the linear 

transportation project. If they are not, 

then they may be authorized by NWP 

43, regional general permits, or 

individual permits. Stream channel 

modifications are authorized by this 

NWP provided they are minimized and 

conducted in the immediate vicinity of 

the project. Otherwise, they require 

authorization under another NWP, a 

regional general permit, or an individual 

permit. This provision allows most 

linear transportation projects to use this 

NWP while ensuring that they result in 

minimal adverse effects on the aquatic 

environment. 

Two commenters requested further 

clarification on the meaning of the 

phrase ‘‘minimum necessary.’’ Another 

commenter recommended modifying 

this NWP to require these activities to 

result in no changes to the course or 

hydrology of streams. 

The phrase ‘‘minimum necessary’’

refers to minimizing the loss of waters 

of the United States needed to protect 

the project. This is determined based on 

case specific circumstances such as the 

environmental setting and the nature of 

the project. General condition 9, 

Management of Water Flows, requires 

maintenance of the course, condition, 

capacity, and location of open waters, 

such as streams, to the maximum extent 

practicable. The construction of linear 

transportation projects over streams 

usually results in some unavoidable 

changes to stream morphology, but the 

conditions of the NWP authorization 

require such impacts to be minimized to 

the maximum extent practicable. 

Three commenters recommended 

adding a 300 linear foot limit to this 

NWP, and another commenter suggested 

a 2,000 linear foot limit. One commenter 

recommended a 200 linear foot limit. 

This NWP does not have a linear foot 

limit for stream bed impacts. Instead, 

the acreage limits for this NWP are 

sufficient to ensure that this NWP 

authorizes only those activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. A 200 linear-foot 

limit was previously removed from 

NWP 14 to eliminate varied 

interpretations and to simplify the basis 

for use of the permit. 

This NWP is reissued with the 

modifications discussed above. 


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NWP 15. U.S. Coast Guard Approved 

Bridges. There were no changes 

proposed for this NWP. One commenter 

asked why this permit only applies to 

U.S. Coast Guard approved bridges and 

not all bridges. The commenter 

suggested that the Corps simplify the 

permit by revising it to include 

construction, repair, seismic retrofit, or 

widening of any bridge, regardless of 

whether it spans navigable waters. 

Another commenter suggested 

modifying this NWP to allow the use of 

another NWP to authorize the 

causeways and approach fills. 

The authority to authorize bridges or 

causeways across navigable waters of 

the United States is held by the U.S. 

Coast Guard. This NWP provides 

authorization under Section 404 of the 

Clean Water Act for discharges of 

dredged or fill material into waters of 

the United States associated with the 

construction of those bridges. The 

construction, repair, seismic retrofit, or 

widening of these bridges must be 

approved by the U.S. Coast Guard. The 

environmental review conducted by the 

U.S. Coast Guard during its 

authorization process will normally 

suffice for those related activities that 

require the section 404 authorization 

provided by this NWP. District 

engineers can exercise discretionary 

authority when the adverse effects to the 

aquatic environment may be more than 

minimal. Bridges constructed across 

section 404 waters may be authorized by 

NWP 14, a regional general permit, or an 

individual permit. For the purposes of 

clarification, the last sentence of this 

NWP is revised to read as follows: 

‘‘Causeways and approach fills are not 

included in this NWP and will require 

a separate Section 404 permit.’’

This NWP is reissued with the 

modification discussed above. 

NWP 16. Return Water From Upland 

Contained Disposal Areas. We proposed 

to rearrange the text of this NWP so that 

it will be consistent with the format of 

the other NWPs. No substantive changes 

were proposed to the text of the NWP. 

One commenter recommended that the 

permit require the issuance of a 

National Pollutant Discharge 

Elimination System permit under 

Section 402 of the Clean Water Act, in 

case the return water contains 

pollutants entrained in the dredged 

material. This commenter expressed 

concern that the discharge would not be 

properly considered through the water 

quality certification process under 

Section 401 of the Clean Water Act. One 

commenter said that the last sentence 

should be modified to acknowledge that 

incidental fallback would not require a 

section 404 permit. 

Return water from upland contained 

disposal areas is administratively 

defined as a discharge of dredged or fill 

material subject to section 404. 

Therefore, section 401 water quality 

certification is the appropriate process 

for determining whether the discharges 

associated with the return water comply 

with the appropriate water quality 

standards. It is not necessary to qualify 

the citation of 33 CFR 323.2(d). District 

engineers will use that definition to 

determine whether section 404 permits 

are required for dredging activities. We 

believe that the inclusion of the citation 

provides a more complete description of 

activities that may constitute a 

discharge of dredged material. 

The NWP is reissued without change. 

NWP 17. Hydropower Projects. We 

proposed to rearrange the text of this 

NWP, without modifying any of its 

terms or its scope. One commenter 

stated that the NWP should not apply to 

hydropower projects exempt from 

Federal Energy Regulatory Commission 

licensing requirements. This commenter 

remarked that an individual permit 

should be required to ensure that 

impacts to aquatic resources are 

evaluated. 

We are retaining the applicability of 

this NWP to hydropower projects that 

are exempt from the licensing 

requirements of the Federal Energy 

Regulatory Commission. We believe the 

pre-construction notification process 

will provide adequate means for district 

engineers to assess the impacts to the 

aquatic environment and, if necessary, 

exercise discretionary authority and 

require an individual permit for a 

particular activity. In addition, division 

and district engineers will condition 

such activities where necessary to 

ensure that these activities will have no 

more than minimal adverse effects on 

the aquatic environment, individually 

and cumulatively. 

The NWP is reissued as proposed. 

NWP 18. Minor Discharges. We 

proposed to modify this NWP by 

applying the 1⁄10 acre limit to all losses 

of waters of the United States, not just 

special aquatic sites. 

Several commenters expressed 

support for the proposed revisions. A 

few commenters said that this NWP 

does not comply with the ‘‘similar in 

nature’’ requirement for general permits. 

Other commenters asserted that the 

cumulative impacts resulting from the 

use of this NWP would not be minimal. 

Another commenter said that this NWP 

should not authorize discharges into 

waters inhabited by species of 

anadromous salmon. 

We believe that the minor scope and 

nature of the types of discharge 

activities authorized by this NWP are 

sufficient to establish that the activities 

are similar in nature. We also maintain 

that the discretion vested in district 

engineers to issue case-specific special 

conditions, including requirements for 

appropriate and practicable mitigation, 

coupled with the ability of division 

engineers to impose regional conditions 

for certain activities will ensure 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. We disagree that activities 

in areas accessible to anadromous 

salmonids will necessarily result in 

more than minimal impacts. Permittees 

must adhere to all applicable NWP 

general conditions including general 

condition 2, Aquatic Life Movements, 

and general condition 3, Spawning 

Areas. The terms and conditions of this 

NWP, as well as the ability for district 

engineers to exercise discretionary 

authority, will help ensure that the 

activities authorized by this NWP result 

in minimal adverse effects to 

anadromous salmon. 

Several commenters remarked that the 

wording of NWP 18 is confusing and 

suggested clarifications be provided. 

One commenter stated the language 

pertaining to ‘‘losses’’ is vague and 

suggested we clarify the text by adding 

‘‘permanent’’ losses. 

We do not agree that additional 

modifications are necessary to clarify 

the terms and conditions of this NWP. 

The proposed revisions to the text of the 

NWPs were made to remove redundant 

language and simplify the wording to 

make it clearer and more concise. The 

term ‘‘loss of waters of the United 

States’’ is defined in the ‘‘Definitions’’

section which explains that the loss of 

waters of the United States includes the 

filled area and other waters that are 

permanently adversely affected by 

flooding, excavation or drainage because 

of the regulated activity. Therefore, we 

do not agree that elaboration on the term 

‘‘losses’’ within the text of this NWP is 

warranted. 

Some commenters objected to the 1⁄10

acre limit as an unnecessary 

administrative burden and unduly 

restrictive when coupled with the preconstruction notification requirement. 

We do not agree that the 1⁄10 acre limit 

will result in an unnecessary 

administrative burden or be unduly 

restrictive for the regulated public. 

While we recognize that the 1⁄10 acre 

threshold may preclude use of this NWP 

for some activities, we have determined 

that activities that result in loss of more 

than 1⁄10 acre of waters of the United 

States are not necessarily ‘‘minor’’

within the meaning of this permit. We 

believe the reduced scope of the permit 


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is justified by the enhanced protection 

afforded to the aquatic environment and 

will better ensure that authorized 

activities result in no more that minimal 

effects. 

Several commenters asserted that a 25 

cubic yard threshold is sufficient to 

ensure minimal adverse impacts on the 

aquatic environment. One commenter 

suggested that the volume criteria reflect 

a net total volume of discharge or 

excavation to allow for the management 

of volumes greater than 25 cubic yards 

as long as the net total discharged or 

excavated does not exceed 25 cubic 

yards. 

The 25 cubic yard limit for excavating 

material, or discharging dredged or fill 

material, below the plane of the 

ordinary high water mark or high tide 

line is necessary to ensure that this 

NWP authorizes only those activities 

with minimal individual and 

cumulative adverse effects on the 

aquatic environment. Applying this 25 

cubic yard limit to net volumes may 

result in more than minimal adverse 

effects, because it could allow 

substantially larger volumes of material 

to be excavated or discharged. 

Excavation or discharges of greater than 

25 cubic yards in waters of the United 

States may be authorized by other types 

of permits, including regional general 

permits and individual permits. The 

language in the September 26, 2006, 

proposal also helps simplify the 

implementation of this NWP, by 

providing clear, easily measured limits 

and making it easier to enforce. 

Another commenter suggested this 

NWP be simplified to authorize only 

discharges of dredged or fill material 

and exclude excavation activities in 

section 10 waters since the Corps does 

not regulate excavation activities under 

section 404 that result only in incidental 

fallback. 

Excavation activities may result in 

discharges of dredged or fill material 

into waters of the United States that 

require section 404 permits (see 33 CFR 

323.2(d)). Therefore, it is not 

appropriate to remove references to 

excavation from this NWP. Unless 

exempted under Section 404(f) of the 

Clean Water Act, excavation activities in 

waters of the United States that result in 

more than incidental fallback require 

section 404 authorization. Minor 

discharges authorized under NWP 18 

often involve excavation activities that 

result in more than incidental fallback 

and would therefore constitute a 

discharge that is regulated under section 

404. 

One commenter recommended NWP 

18 be specifically prohibited from use 

for any new residential and commercial 

construction and that impacts resulting 

from new residential or commercial 

development be subject to NWPs 29 and 

39, respectively. 

This NWP authorizes minor 

discharges of dredged or fill material in 

waters of the United States provided 

that the activity complies with the 

specific terms and conditions of the 

NWP and all applicable NWP general 

conditions. The applicability and 

verification of the use of this NWP is at 

the discretion of district engineers based 

on case-specific circumstances. 

Therefore, we believe it would be 

inappropriate to prohibit its use for new 

residential and commercial 

development in the absence of casespecific information. We note that the 

limits on use of this permit are more 

restrictive than the limits on use of 

NWPs 29 and 39, so developers could 

only use this permit if their impacts 

were smaller than those that could be 

potentially authorized by these other 

NWPs. 

One commenter recommended 

including language stating that the 

discharge will not result in significant 

stream geomorphologic or hydrologic 

alteration, and that the discharge will 

not be placed for the purpose of, or 

result in, impeding navigation. 

General condition 9, Management of 

Water Flows, requires maintenance of 

the course, condition, capacity, and 

location of open waters, such as 

streams, to the maximum extent 

practicable. Concerns regarding 

potential impacts to navigation are 

addressed by general condition 1, which 

states that no activity may cause more 

than minimal adverse effects on 

navigation. 

This NWP is reissued as proposed. 

NWP 19. Minor Dredging. We 

proposed to remove the phrase ‘‘as part 

of a single and complete project,’’ since 

that requirement applies to all NWPs 

and it is not necessary to include that 

phrase in the text of this NWP. One 

commenter supported the proposed 

change. 

Another commenter said that the 

phrase ‘‘including sites where 

submerged aquatic vegetation is 

documented to exist but may not be 

present in a given year’’ is not 

appropriate and recommended that it be 

removed. The commenter asserted that 

the Corps should not prohibit the use of 

this NWP in areas where submerged 

aquatic vegetation was present in the 

past, but there is no longer evidence that 

it is still present. 

We are retaining this provision of the 

NWP, since areas where submerged 

aquatic vegetation is documented to 

exist have a high potential for those 

species to return to the area. In a given 

year, poor water quality may prevent 

submerged aquatic vegetation from 

inhabiting that area, but once water 

quality improves those plants may grow 

back. 

One commenter was concerned about 

authorizing minor dredging activities in 

waters containing habitat features for 

various life stages of anadromous fish, 

including complex wood structures and 

edge habitats used for juvenile rearing 

and adult holding. The commenter 

indicated that this NWP should not be 

used to authorize dredging in waters 

that are inhabited by anadromous 

salmonids. 

The terms and conditions of this 

NWP, as well as the ability for division 

and district engineers to exercise 

discretionary authority or condition this 

NWP, are sufficiently protective of 

species of anadromous salmon. General 

condition 2, Aquatic Life Movements, 

specifies no activity may disrupt the 

necessary life cycle movements of the 

aquatic species indigenous to the 

waterbody. In addition, general 

condition 3, Spawning Areas, states that 

activities in any spawning areas must be 

avoided to the maximum extent 

practicable during spawning seasons 

and the specific terms of this NWP 

prohibit its use in anadromous fish 

spawning areas at all. Additional time of 

year restrictions may be imposed by 

division and district engineers to reduce 

or avoid impacts to juvenile salmonids 

utilizing these areas. 

Other commenters expressed 

concerns that NWP 19 does not 

authorize activities that are similar in 

nature with minimal impacts. One 

commenter questioned whether this 

NWP can be used for removal of a 

sandbar across the mouth of a navigable 

waterway. A couple of commenters 

questioned why this NWP applies to 

section 404 waters when the text of the 

permit states that it only authorizes 

minor dredging activities in section 10 

waters. One commenter said that this 

NWP should not authorize dredging 

activities in non-navigable waters, 

including small streams, because of the 

greater potential for more than minimal 

adverse environmental effects. 

We believe that the minor scope and 

nature of the types of dredging activities 

authorized by this NWP are sufficient to 

establish that the activities are similar in 

nature. This NWP can only be used to 

authorize the removal of materials from 

waters subject to Section 10 of the 

Rivers and Harbors Act of 1899. 

Dredging activities in section 10 waters 

may require section 404 authorization, 

which may be provided by this NWP. In 

waters of the United States that are not 


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subject to section 10 jurisdiction (i.e., 

section 404-only waters), NWP 18, 

regional general permits, or individual 

permits may be used to authorize those 

activities. This permit could be used to 

remove a sandbar across the mouth of a 

Section 10 water provided the activity 

met all of the other conditions for its 

use. 

This NWP is reissued without change. 

NWP 20. Oil Spill Cleanup. We did 

not propose any substantive changes to 

this NWP. One commenter requested 

clarification of the applicability of NWP 

38 for emergency response to an oil 

release in waters of the United States 

from electrical equipment that is not 

covered by a Spill Prevention, Control, 

and Countermeasure (SPCC) Plan. These 

releases are governed by EPA’s 

polychlorinated biphenyl spill response 

regulations at 40 CFR part 761. Because 

the activities are not included in a SPCC 

Plan, they were not authorized by the 

previous or the proposed versions of 

NWP 20. Since the required work must 

be initiated within 24 or 48 hours of 

discovery of the release, the commenter 

requested that either NWP 20 be 

modified or the pre-construction 

notification requirement for NWP 38 be 

removed, to allow these activities to 

take place in a timely manner. 

We agree with the commenter’s 

concern but do not think it is 

appropriate to remove the preconstruction notification requirement 

from NWP 38. We are thus modifying 

NWP 20 to authorize the cleanup of oil 

releases in waters of the United States 

from electrical equipment that are 

governed by EPA’s polychlorinated 

biphenyl spill response regulations at 40 

CFR part 761. 

This NWP is reissued with the 

modification discussed above. 

NWP 21. Surface Coal Mining 

Operations. We proposed to change the 

title of this NWP. We also proposed 

allowing authorization of projects by 

this NWP that were currently being 

processed as part of an integrated permit 

processing procedure in lieu of an 

authorization from the Department of 

Interior, Office of Surface Mining (OSM) 

or by states with approved programs 

under Title V of the Surface Mining 

Control and Reclamation Act (SMCRA) 

of 1977. The Corps, the Environmental 

Protection Agency, OSM, and the U.S. 

Fish and Wildlife Service entered into a 

Memorandum of Understanding on 

February 8, 2005. This MOU envisioned 

a collaborative process in which the 

SMCRA authority chooses to be the lead 

agency in coordinating interagency 

review of applications for surface coal 

mining operations while preserving the 

authorities and responsibilities of each 

agency for permit decisions. 

We believe there may be some 

confusion regarding the intent of the 

term ‘‘surface’’ coal mining operations. 

The Corps did not intend to restrict use 

of this NWP to only a particular type of 

coal mining technique. Any coal mining 

activities can be considered for 

authorization under NWP 21 to the 

extent the activities occur on the surface 

of the land. In particular, while 

discharges associated with underground 

coal mining activities now require 

authorization under NWP 50 rather than 

NWP 21, surface processing activities 

associated with underground coal 

mining may still be authorized by this 

permit provided they meet the 

conditions for its use. 

Proposed Limits 

There were numerous comments 

regarding limitations on NWP 21. A 

number of commenters recommended 

limits on the length of stream that could 

be filled under NWP 21, and other 

commenters recommended an overall 

limit on impacts to waters of the United 

States of 1⁄2 acre. One commenter 

suggested that the threshold limits 

should be 2 acres and 1,500 linear feet. 

Three commenters recommended a 300 

linear foot limit on filling streams and 

a 1⁄2 acre limit on impacts to all waters, 

and that these impacts could not be 

waived by the district engineer. Two 

other commenters concurred with the 

300 foot limit but also suggested not 

allowing the use of NWP 21 in 

watersheds where the cumulative 

amount of filled streams was already 

causing more than minimal harm. 

Several commenters stated that any 

linear foot limits should apply to all 

streams, ephemeral, intermittent, and 

perennial. One commenter said that this 

NWP should not authorize discharges 

into perennial streams. Another 

commenter stated that the use of NWP 

21 should not be allowed if more than 

10 percent of the headwater streams in 

the watershed had been filled or 

otherwise degraded. One commenter 

stated that a 250-acre watershed limit 

was appropriate but that drainage areas 

was not the only factor that should be 

considered in determining if a project 

should qualify for NWP 21. 

There were also a substantial number 

of comments that objected to limitations 

on NWP 21. Many commenters stated 

that acreage limits that may be 

appropriate for eastern states would not 

be appropriate for western states and 

would be unnecessarily restrictive. Two 

commenters suggested issuing two 

versions of NWP 21, one for the western 

United States and another for the 

eastern United States. They discussed 

the differences in mining and 

reclamation techniques and believed the 

Corps should recognize these 

differences by establishing two NWPs 

for coal mining. One commenter noted 

that acreage limits need to be larger for 

the western United States. A number of 

commenters suggested that regional 

conditions could be used to address the 

issue of limits. Several commenters 

noted that there was no compelling 

scientific or environmental basis or 

rationale to establish limits on NWP 21. 

They noted that due to hydrologic, 

climatic, and ecological variations, there 

was no defensible way to establish a 

specific threshold below which impacts 

could be said to be ‘‘minimal’’ across 

the vastly differing geographical and 

hydrological regimes where mining 

occurs. Several commenters stated that 

arbitrary and unnecessary thresholds 

would slow the permit process and 

result in a loss of coal production, 

which could be construed as a ‘‘takings’’

that violated substantive due process 

rights. Other commenters noted that 

limiting the use of NWP 21 would result 

in a loss in royalty and tax revenues and 

increases to the cost of the nation’s 

energy supply by restricting coal 

production. One commenter noted that 

it would take more of the Corps’ limited 

resources to review surface mining 

projects as individual permits. One 

commenter stated that thresholds would 

also impact the Corps’ ability to comply 

with Executive Order 13212, which 

requires federal agencies to expedite 

their review of permits for energy 

related projects. One commenter noted 

that if a 2-acre limit were established for 

NWP 21, more than 60 percent of the 

nation’s coal production would not be 

eligible for the NWP. One commenter 

stated that a 3-acre limit in the western 

United States would have a significant 

impact on Western mining operations. 

One commenter noted that if a limit of 

less than 50 acres was adopted, the 

Corps’ would not achieve its goal of 

focusing its limited resources on 

projects that have the potential for more 

environmentally damaging adverse 

effects. Two commenters believed 

safeguards were in place to ensure 

impacts do not cause more than 

minimal individual or cumulative 

effects. They noted that general 

condition 20, Mitigation, requires 

compensatory mitigation to offset the 

adverse effects to the aquatic 

environment, and that there was no 

need for arbitrarily chosen acreage 

limits because the mitigation 

requirement counterbalances all adverse 

effects. 


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This NWP is used to provide section 

404 authorization for surface coal 

mining activities that have also been 

authorized by the Office of Surface 

Mining or states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act 

(SMCRA). Previously, there have been 

no limits associated with impacts to 

waters of the United States for NWP 21. 

This was based partly on the belief that 

the analyses and environmental 

protection performance standards 

required by SMCRA in conjunction with 

the pre-construction notification 

requirement, are generally sufficient to 

ensure that NWP 21 activities result in 

minimal individual and cumulative 

adverse impacts on the aquatic 

environment. 

Furthermore, we believe the change in 

NWP 21 in 2002, which requires not 

only notification to the Corps for all 

projects that may be authorized by this 

permit but also explicit authorization 

from the Corps before the activity can 

proceed, has strengthened the 

environmental protection for projects 

authorized by this permit. One 

commenter requested that this 

requirement be removed from this NWP. 

However, we continue to believe that 

this 2002 change helps ensure that no 

activity authorized by this permit will 

result in greater than minimal adverse 

impacts, either individually or 

cumulatively, on the aquatic 

environment, because it requires a caseby-case review of each project. If the 

district engineer determines through 

this case-by-case review that the activity 

has the potential to result in more than 

minimal adverse effects to the aquatic 

environment, he or she can exercise 

discretionary authority to require an 

individual permit. Also, because of the 

case-by-case review and the requirement 

for written verification, we do not agree 

that it is necessary to prohibit 

discharges of dredged or fill material 

into perennial streams. 

Lastly, the Corps recognizes that there 

are vast differences in coal mining 

techniques not only between the 

western and eastern parts of the United 

States, but also within the Illinois Coal 

Basin and the Appalachian Coal Fields 

themselves. There are also considerable 

differences in geological, topographical, 

climatological, hydrological and 

ecological regimes in the areas where 

coal resources are located across the 

United States. Furthermore, no specific 

scientific or environmental basis for 

determining a uniform national limit on 

NWP 21 was submitted for 

consideration. As noted above, there 

were several comments suggesting 

specific limits but no ecological 

rationale was supplied to support these 

specific limits. Several commenters did 

submit information from the 

Programmatic Environmental Impact 

Statement (PEIS) for mountaintop 

mining/valley fill. However, the PEIS 

did not support or determine 

appropriate limits for NWP 21. Based on 

these considerations along with the fact 

that the impacts to waters vary greatly 

depending on the mining techniques 

and the environmental factors in the 

area, we have determined that 

establishing a specific threshold limit 

would not be practical on a national 

basis. We believe that regional 

conditions, as appropriate, and sitespecific review of each pre-construction 

notification will ensure that NWP 21 

authorizes activities with no more than 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. The Corps has 

determined that it is both efficient and 

environmentally protective to issue an 

NWP 21 that can be used to authorize 

most activities that have no more than 

minimal adverse effects on the aquatic 

environment and allow division 

engineers to establish regional 

conditions that determine appropriate 

limits for impacts to waters based on the 

functions and values of aquatic 

resources within their division. 

Regional Conditions 

There were three commenters who 

noted that the division engineer has the 

discretion to add regional terms and 

conditions to NWP 21 and that acreage 

limitations should be determined at the 

regional level. The Corps agrees, based 

on the discussion above regarding 

limitations, that regional conditions are 

the best way to address regional 

concerns regarding surface coal mining 

activities and NWP 21. Division 

engineers can add regional conditions to 

any NWP to further restrict the use of 

the NWP to ensure that the NWP 

authorizes only activities with no more 

than minimal adverse effects on the 

aquatic environment in a particular 

watershed or other geographic region. 

The division engineer cannot modify 

the NWP by adding regional conditions 

to make the NWP less restrictive (see 33 

CFR 330.1(d)). The use of regional 

conditions recognizes that functions and 

values of aquatic resources differ greatly 

across the country. 

Discretionary Authority 

Three commenters noted that NWP 21 

allows the Corps to exercise 

discretionary authority during the preconstruction notification review process 

for any project which has the potential 

to cause more than minimal individual 

and cumulative adverse impacts on the 

aquatic environment. 

We agree with these commenters. The 

pre-construction notification 

requirements of all NWPs allows for a 

case-by-case review of activities that 

have the potential to result in more than 

minimal adverse effects to the aquatic 

environment. If the adverse effects on 

the aquatic environment are more than 

minimal, then the district engineer can 

either add special conditions to the 

NWP authorization to ensure that the 

activity results in no more than minimal 

adverse environmental effects or 

exercise discretionary authority to 

require an individual permit. While 

many NWPs allow the permittee to 

assume authorization if he or she has 

not heard back from the Corps within 45 

days of submitting a complete preconstruction notification, NWP 21 

requires written verification before the 

project can proceed. This ensures that 

adequate time is available to the Corps 

to review the extensive documentation 

that pre-construction notifications for 

NWP 21 often include, coordinate with 

other agencies as necessary, and 

determine whether exercise of 

discretionary authority is necessary to 

ensure no more than minimal effects. 

Scope of Analysis 

One commenter stated that the scope 

of analysis for NWP 21 review should 

extend beyond the effects of fills in 

waters. Another commenter noted that 

the Clean Water Act is clear that general 

permits may only be issued if the 

permitted activities have minimal 

impacts on the environment as a whole 

and not just the aquatic environment. 

Several commenters stated that NWP 

21 should not be reissued, in order to 

protect wildlife habitat, outdoor 

recreation, the quality of life in rural 

communities and environmental 

integrity. A myriad of comments were 

received itemizing impacts related to 

authorizations associated with NWP 21. 

These impacts included irreversible 

damages to the American people, the 

destruction of lives and the natural and 

cultural heritage of Appalachia, 

Montana and Wyoming, loss of hunting 

opportunities, the exploitation of 

impoverished areas by large 

corporations, global warming, 

landslides, blasting, truck traffic on 

roads not designed or built to handle 

heavy loads, harm to bird populations, 

destruction of valuable hardwood trees, 

loss of medicinal plants, affects on the 

tourism/vacation home industry, and 

local sickness. Several commenters 

stated that mined areas cannot be 

restored to pre-mining conditions, such 

as native forest. Several commenters 


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expressed concern about coal slurry 

damaging downstream areas. 

All of these impacts are outside of the 

Corps’ scope of analysis pursuant to the 

National Environmental Policy Act 

(NEPA). The Corps evaluation of coal 

mining activities is focused on impacts 

to aquatic resources. Mining in general 

is permitted under a separate Federal 

law, the Surface Mining Control and 

Reclamation Act. Impacts associated 

with surface coal mining and 

reclamation operations are 

appropriately addressed by the Office of 

Surface Mining or the applicable state 

agency. Under these circumstances, the 

Corps’ NEPA implementing regulations 

clearly restrict the Corps’ scope of 

analysis to impacts to aquatic resources. 

Integrated Permit Process 

Several commenters supported the 

Memorandum of Understanding (MOU) 

between the EPA, Corps, OSM and the 

USFWS regarding the integrated permit 

process for coal mining mentioned in 

the proposed NWP language. Some 

suggested the integrated permit process 

along with the Standard Operating 

Procedure (SOP) for NWP 21 be 

mandatory under NWP 21. Some 

commenters stated that the integrated 

permit process does not eliminate the 

dual review of section 404 and SMCRA 

as the MOU intended, while other 

commenters stated that the integrated 

permit process was unlawful because 

through it, the Corps has delegated its 

section 404 authority to the states 

processing the SMCRA permit 

applications. One of the commenters 

supporting the MOU stated that the 

current integrated permit process did 

not meet the goal of the MOU, as 

evidenced by its failure in Ohio, since 

dual reviews were still being 

undertaken by the regulatory agencies. 

The MOU recommends that Federal 

and state agencies coordinate reviews of 

coal mining permit applications, with 

the SMCRA agency as the lead agency. 

Currently, in areas that have developed 

or are in the process of developing an 

integrated permit process, the agencies 

have elected to make the process 

voluntary. The integrated permit 

process does not eliminate the 

regulatory responsibilities of the 

participating agencies, but allows the 

various permit applications to be 

reviewed concurrently while utilizing 

information from one application to 

fulfill required sections of other 

applications, where appropriate. The 

process allows for timelier reviews 

while providing the framework for 

better environmental protection. The 

Ohio integrated permit process is still in 

use for those who choose to use it. 

State Programmatic General Permits 

and Regional General Permits 

Several commenters suggested that a 

state programmatic or regional general 

permit or other methods (e.g., a national 

MOU) be developed to reduce the 

duplication of effort by the regulatory 

agencies, therefore reducing cost and 

delays in receiving authorizations. 

State programmatic and regional 

general permits are developed at the 

district level. The Corps supports and 

participates in such efforts where 

possible. 

Surface Mining Control and 

Reclamation Act 

Several commenters stated that coal 

mining is the most environmentally 

regulated activity, and SMCRA, along 

with Sections 401 and 402 of the Clean 

Water Act, already require analyses of 

all of the factors addressed under 

Section 404 of the Clean Water Act. 

Therefore, as the above-referenced 

programs already regulate impacts to 

aquatic resources, including impacts 

related to water quality, endangered 

species, historic properties, and the 

hydrologic regime, further review by the 

Corps only creates an additional 

administrative burden without any real 

benefits. 

The Corps understands coal mining is 

covered by many environmental 

regulations; however the Corps has 

determined that SMCRA, in its current 

form, does not remove the need, either 

legally or substantively, for independent 

authorization under Section 404 of the 

Clean Water Act. Consequently, this 

NWP does not duplicate the SMCRA 

permit process. The Corps continues to 

work with the other agencies to avoid 

potential duplication of efforts and uses 

appropriate work and studies done by or 

for other agencies (e.g., surveys/findings 

under the Endangered Species Act or 

Section 106 of the National Historic 

Preservation Act as well as SMCRA 

permit documentation) in its analysis of 

the proposed project. 

Mitigation 

Several commenters stated that 

mitigation done for NWP 21 is 

scientifically indefensible and, absent 

such mitigation, the projects authorized 

under NWP 21 have more than minimal 

adverse effect and are therefore 

impermissible. They stated that current 

mitigation projects have so far been 

unsuccessful and referenced a court 

case in the Southern District of West 

Virginia (Ohio Valley Environmental 

Coalition v. Bulen), where they noted 

that a Corps official stated that he did 

not know of a single instance of 

successful headwater stream creation. 

Also, the commenters stated that the 

Corps did not include any specific 

guidelines for how to assess stream 

function in order to determine the 

adequacy of compensatory mitigation. 

They also stated that the Corps has not 

shown that mitigation will offset the 

impacts authorized under NWP 21 or 

that off-site enhancement of streams 

would fully compensate for functions of 

streams that are destroyed. Other 

commenters stated that the Corps 

mistakenly allows the mitigation 

requirements of SMCRA and state water 

quality laws to satisfy the independent 

requirements of Section 404 of the Clean 

Water Act. They stated that allowing a 

permittee to claim a compensatory 

mitigation or reclamation activity 

already required under SMCRA as 

compensatory mitigation under the 

Clean Water Act is ‘‘double-counting’’

and improperly blurs the requirements 

of sequencing (i.e., avoidance, 

minimization, mitigation) imposed 

under the 404(b)(1) guidelines. Other 

commenters recommended that 

mitigation of 1:1 should be required in 

order to achieve no net loss, and that 

mitigation also be required for potential, 

as well as actual, impacts. Several 

commenters stated that final 

reclamation of wetland habitat will most 

likely exceed the required compensatory 

mitigation. 

In order to ensure that an activity 

results in no more than minimal adverse 

effect on the aquatic environment, the 

Corps will add permit conditions that 

require compensatory mitigation that 

meets specified success criteria. The 

Corps will generally require the 

permittee to monitor the mitigation site 

for five years and, if the mitigation site 

does not meet the success criteria at that 

time, remediation or additional 

mitigation will be required. This 

ensures that the authorized activity will 

not result in a net loss in aquatic 

functions. The Corps has increased its 

compliance efforts to ensure that 

projects authorized by DA permits are 

constructed as authorized and that 

mitigation is successful. 

We are currently developing new 

stream functional assessment protocols 

to identify and quantify the functions 

lost through authorized impacts and the 

functions gained or enhanced through 

mitigation. We removed the language 

from the proposed NWP 21 that 

required the applicant to furnish a 

SMCRA or state-approved mitigation 

plan. The Corps recognizes that SMCRA 

does not require ‘‘mitigation’’ per-se, but 

does require ‘‘reclamation/restoration’’, 

and that some states require 

‘‘mitigation’’ above Corps requirements. 


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The Corps coordinates with the SMCRA 

and state resource agencies to achieve 

appropriate aquatic restoration on mine 

sites, which can reduce or eliminate offsite compensatory mitigation needs. The 

Corps does not consider this ‘‘doublecounting’’, because the areas restored 

are only counted once in the 

replacement of aquatic resource 

functions. As long as the functions lost 

as a result of the permitted activity are 

mitigated through the onsite restoration 

or enhancement, it does not matter if the 

restoration also meets other goals 

unrelated to the Section 404 impacts. 

General condition 20 establishes the 

framework for achieving no net loss of 

waters/wetlands, as well as the 

sequential review of mitigation on-site. 

The Corps takes into account the fact 

that, in certain areas and circumstances, 

any Corps compensatory mitigation 

requirement may be fully encompassed 

or exceeded by requirements under 

other authorities. As long as the impacts 

to the aquatic environment are fully 

mitigated, the Corps will not require 

additional compensation. 

Withdraw NWP 21 

Several commenters requested that 

NWP 21 be withdrawn and that the 

Corps consider authorizations under 

state or regional permits where 

cumulative impacts and mitigation 

measures can be evaluated on a more 

focused level that assures minimal 

impacts on the environment. 

Division and district engineers have 

the authority to revoke or modify any or 

all of the NWPs and require 

authorizations for proposed projects by 

other general permits or individual 

permits. This should be determined on 

a local level. 

Independent Evaluation 

Several commenters stated that the 

burial or other degradation of hundreds 

of miles of Appalachian streams from 

mining demands a thorough, 

independent review, public notice, and 

analysis of alternatives and 

minimization, which is provided only 

through the individual permit process. 

A few commenters stated that coal 

mining rearranges the natural landscape 

and deserves to be studied on a case-bycase basis. One commenter stated that 

each project should be independently 

evaluated with proper safeguards in 

place to include meaningful bonds that 

would be sufficient to cover remediation 

costs when companies declare 

bankruptcy. 

A careful case-specific determination 

that a project will result in no more than 

minimal impacts is necessary for a 

project to be authorized by this NWP. 

The pre-construction notification 

process for NWP 21, which requires the 

applicant to wait until he or she 

receives verification from the Corps, 

provides this case-specific 

determination. If the District Engineer 

determines that a particular proposal 

will result in more than minimal 

adverse environmental effects, he will 

assert discretionary authority and 

require an individual permit. Bonding is 

covered under general condition 20. The 

Corps notes that the SMCRA permitting 

process provides for public notice and 

comment on all coal mining permits. 

Minimal Adverse Effects 

A few commenters stated that the 

Secretary of the Army can only issue 

NWPs by making an up-front 

determination that the activities 

authorized by each NWP category will 

cause only minimal adverse effects and 

the Corps cannot ignore harm already 

done when assessing cumulative 

impacts. The commenters stated that the 

Corps has no reasoned basis or 

substantial evidence to support its 

determinations that the individual or 

cumulative environmental impacts 

associated with NWP 21 will be 

minimal. Several commenters similarly 

stated that compensatory mitigation 

could not be used to reduce the net 

adverse impacts to the minimal level in 

order to qualify for general permits. 

Therefore, NWP 21 exceeds the 

definition of minimal adverse 

environmental effects and all coal 

mining should be reviewed under the 

individual permit process. A number of 

commenters stated that surface coal 

mining results in significant ecological 

damage to headwater stream systems, 

when considered both individually and 

cumulatively, and it cannot be 

reasonably assumed that those stream 

losses can be mitigated into 

insignificance. 

We believe our process for NWP 21 

ensures that activities authorized by the 

NWP result in no more than minimal 

adverse impacts to the aquatic 

environment because each project is 

reviewed on a case-by-case basis and the 

district engineer either makes a minimal 

impacts determination on the project or 

asserts discretionary authority and 

requires an individual permit. 

Additionally, as noted above, division 

engineers can add regional conditions to 

any NWP to further restrict the use of 

the NWP to ensure that the NWP 

authorizes only activities with no more 

than minimal adverse effects on the 

aquatic environment in a particular 

watershed or other geographic region. 

Each district tracks losses of waters of 

the United States authorized by 

Department of the Army permits, 

including NWPs, as well as 

compensatory mitigation achieved 

through aquatic resource restoration, 

creation, and enhancement. 

In addition, we believe that the Corps 

can rely on mitigation in making a 

minimal adverse environmental effects 

determination. 

One commenter requested that the 

Corps clarify what constitutes a ‘‘single 

and complete surface coal mining 

operation’’ since approved mines can 

expand through either the addition of 

substantial acreages or the addition of 

small acreages (incidental boundary 

revisions). This commenter asked 

whether all revisions, including 

incidental boundary revisions, are 

considered as single and complete coal 

mining operations. 

District engineers use the criteria in 

the definition of ‘‘single and complete 

project,’’ which is found in the 

‘‘Definitions’’ section of the NWPs, 

when identifying single and complete 

coal mining operations. District 

engineers will determine, on a case-bycase basis, whether the expansion of an 

existing mine constitutes a separate 

single and complete project. 

Impacts From NWP 21 Activities 

Many commenters opposed the 

reissuance of NWP 21 because of the 

potential impacts to the aquatic 

environment and water resources. 

Several commenters expressed concerns 

about impacts to water supplies and 

drinking water, downstream water uses, 

and recreational opportunities such as 

fishing. Concerns were also expressed 

about water pollution, the effects of 

burying streams that support aquifers, 

and loss of streams and wetlands. This 

NWP requires compliance with all of 

the general conditions for the NWPs, 

which address many of these concerns. 

Additionally, many of these factors will 

be evaluated during the project-specific 

evaluation. 

One commenter noted that NWP 21 

does not provide the public an 

opportunity to comment on the specific 

conditions of a permit that will affect 

their communities and watersheds. 

Section 404(e) of the Clean Water Act 

provides the statutory authority for the 

issuance of general permits on a 

nationwide basis for any category of 

activities. The Corps establishes NWPs 

in accordance with section 404(e), by 

publishing and requesting comments on 

the proposed permits. The general 

public has the opportunity to comment 

on NWPs at this time. In order to 

address the requirements of the National 

Environmental Policy Act, the Corps 

prepares a decision document for each 


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NWP along with a 404(b)(1) Guidelines 

analysis. The decision document 

discusses the anticipated impacts on the 

Corps’ public interest factors from a 

national perspective. NWPs are issued 

at the conclusion of this process. The 

individual projects that are proposed for 

authorization under an NWP are not 

given a permit but a verification or 

authorization that the project complies 

with an NWP. There are no 

requirements for public comments on 

specific projects authorized under 

NWPs. However, in the case of NWP 21, 

all projects must have undergone a 

separate SMCRA review process the 

provides for public notice and 

comment. 

Several commenters recommended 

that NWP 21 be eliminated because it 

fails to require that the applicant 

demonstrate that there are no 

practicable alternatives to placing fill in 

waters of the United States, a 

requirement of Section 404(e) of the 

Clean Water Act. The commenters 

stated that the Corps wrongly assumes 

the SMCRA process to be comparable to 

Section 404 and the 404(b)(1) 

Guidelines. The commenters noted that, 

in fact, SMCRA does not require the 

applicant to choose the method of coal 

waste management that avoids and 

minimizes impacts and is least 

damaging to waters of the United States. 

The Corps does not assume that other 

state or Federal agencies conduct a 

review that is comparable to the section 

404(b)(1) Guidelines. Although analysis 

of offsite alternatives is not required in 

conjunction with general permits, each 

proposed project is evaluated for onsite 

avoidance and minimization, in 

accordance with general condition 20, 

and is not authorized under the NWP if 

the adverse impacts to waters of the 

United States are more than minimal. 

Five commenters noted that coal 

slurry impoundments should not be 

allowed by an NWP and that NWPs can 

only be issued for activities that are 

similar in nature and that valley fills 

and coal slurry impoundments are not 

similar in nature. 

The Corps has determined that slurry 

impoundments and valley fills are part 

of surface coal mining activities and are 

therefore similar in nature. The ‘‘similar 

in nature’’ requirement does not mean 

that activities authorized by an NWP 

must be identical to each other. We 

believe the ‘‘categories of activities that 

are similar in nature’’ requirement of 

Section 404(e) is to be interpreted 

broadly, for practical implementation of 

the NWP program. 

The NWP is reissued as proposed. 

NWP 22. Removal of Vessels. We 

proposed to rearrange the text of this 

NWP so that it is in a format similar to 

the other NWPs. In addition, we 

proposed to require pre-construction 

notification if the activity requires 

discharges of dredged or fill material 

into special aquatic sites. 

One commenter asked if the preconstruction notification requirement 

included marine protected areas. One 

commenter said that pre-construction 

notification should be required for all 

vessel removals because certain removal 

methodologies may result in additional 

environmental impacts. One commenter 

stated that pre-construction notification 

should be required for all vessel 

removals from special aquatic sites, not 

just those involving discharges of 

dredged or fill material. 

Pre-construction notification is 

required for NWP 22 activities in 

designated critical resources waters and 

their adjacent wetlands (see general 

condition 19), which may include 

marine protected areas. Designated 

critical resource waters include NOAAdesignated marine sanctuaries, Natural 

Estuarine Research Reserves, and other 

waters identified by the district engineer 

after the issuance of a public notice and 

an opportunity for public comment. We 

do not agree that pre-construction 

notification should be required for all 

activities authorized by this NWP. 

However, we are modifying this NWP to 

require pre-construction notification for 

activities in special aquatic sites, to 

ensure that those activities result in 

minimal adverse effects on the aquatic 

environment. Vessel removal activities 

in special aquatic sites, especially coral 

reefs and vegetated shallows, have the 

potential to result in more than minimal 

adverse effects, even though there may 

be no discharge of dredged or fill 

material. Vessel removal activities in 

other areas conducted in compliance 

with the NWP and the general 

conditions will normally have no more 

than minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. Further, division and 

district engineers will condition these 

activities as necessary to ensure that 

they will have no more than minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. 

Another commenter observed that 

vehicles are often found in waters of the 

United States due to accidents, 

abandonment, and other reasons, and 

that the removal of the vehicles is 

necessary to minimize the adverse 

environmental impacts associated with 

release of automotive fluids. The 

commenter requested that this NWP be 

modified to allow for the expedited 

removal of vehicles from waters of the 

United States. 

We agree that the presence of 

vehicles, and the associated automotive 

fluids, in waters of the United States can 

be environmentally damaging, and this 

NWP can be used to authorize their 

removal when they constitute an 

obstruction to navigation. However, we 

believe that the pre-construction 

notification requirements for activities 

into special aquatic sites are necessary 

to ensure that the activities authorized 

by this NWP have no more than 

minimal adverse effects. Division and 

district engineers can evaluate projects 

on a case by basis in situations where 

pollutants may be leaking from vehicles 

and determine if expedited or 

emergency processing procedures are 

warranted. 

A commenter requested that the Corps 

indicate when EPA and Corps permits 

are required or provide citations to EPA 

and Corps regulations. One commenter 

noted that the parenthetical 

identification of statutory authorities 

was not included at the end of the text 

for this NWP. 

The ‘‘Note’’ to this NWP already 

includes a citation of applicable EPA 

regulations. We do not believe it is 

necessary to add citations to the Corps 

regulations for implementing Section 

404 of the Clean Water Act and Section 

10 of the Rivers and Harbors Act of 

1899. We are correcting this NWP to 

identify the statutory authorities under 

which this NWP is issued (i.e., sections 

10 and 404). 

Another commenter requested that 

the Corps clarify in the preamble to the 

final rule that this NWP also applies to 

the removal of objects and structures 

such as derelict mooring and breasting 

structures, piles, docks, bridges and 

trestles that are man made obstructions 

to navigation. They remarked that some 

districts apply this NWP only to the 

removal of vessels. One commenter 

requested clarification as to when a preconstruction notification is required 

with respect to general condition 18, 

Historic Properties. They asked if the 

permittee would have to wait to remove 

the vessel until after the district 

engineer has informed the permittee 

that compliance with general condition 

18 is complete. 

The text of the NWP clearly states that 

the NWP applies to the removal of manmade obstructions to navigation, which 

may include any of the obstructions 

identified by the commenter in addition 

to wrecked, abandoned, or disabled 

vessels. If the vessel is listed, or eligible 

for listing, in the National Register of 

Historic Places, then consultation under 

Section 106 of the National Historic 


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Preservation Act is required. The 

permittee would have to wait until the 

section 106 process has been completed 

before conducting the work. 

The NWP is reissued with the 

modification discussed above. 

NWP 23. Approved Categorical 

Exclusions. We proposed to modify this 

NWP by reorganizing the text, adding 

language to explain that Corps’

Regulatory Guidance Letters (RGLs) list 

the approved Categorical Exclusion (CE) 

activities, and adding language that 

directs prospective permittees to the 

appropriate RGLs to determine if preconstruction notification is required. 

One commenter supported the 

proposed rewording of NWP 23, and 

supported the clarification of preconstruction notification requirements. 

One commenter remarked that this NWP 

violates the intent of the National 

Environmental Policy Act (NEPA) by 

enabling developers to avoid addressing 

ecological impacts. 

The process for approving categorical 

exclusions for use with this NWP, 

including any approved categorical 

exclusions that require pre-construction 

notification, helps ensure that this NWP 

authorizes only those activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment and the public 

interest. In addition, only the actions of 

government agencies qualify for this 

NWP. 

Another commenter suggested 

requiring pre-construction notification 

for activities adversely affecting more 

than 1⁄10 acre of wetland, and 

recommended adding a 1⁄3-acre limit to 

this NWP for wetland impacts. One 

commenter suggested that larger 

activities should be evaluated under 

individual permit procedures instead of 

using this NWP, and suggested that 

large highway projects impacting 

wetlands should not be authorized 

without the public involvement and the 

environmental safeguards of the 

404(b)(1) Guidelines. One commenter 

suggested that all projects requiring 

stream channelization and any bridges 

spanning less than 1.5 times the 

bankfull width of a stream should be 

evaluated through the individual permit 

process. 

The pre-construction notification 

thresholds established for the 

categorical exclusions approved for use 

with this NWP require case-by-case 

review for activities that have the 

potential to result in more than minimal 

adverse effects on the aquatic 

environment. For the same reasons, it is 

not necessary to impose an acreage limit 

on this NWP or require individual 

permits for large highway projects that 

impact small amounts of waters of the 

United States and qualify for approved 

categorical exclusions. In response to a 

pre-construction notification, the 

district engineer can add special 

conditions to the NWP authorization to 

ensure that adverse effects on the 

aquatic environment are minimal or 

exercise discretionary authority to 

require an individual permit for the 

work. 

Two commenters said that this NWP 

authorizes activities that are not similar 

in nature. One commenter suggested 

that categorizing impacts by the effects 

instead of by the nature of activity is 

invalid, and that there appeared to be no 

limiting principle on the nature of the 

activities that could be permitted. 

Regulatory Guidance Letter 05–07 

lists all categorical exclusions currently 

approved for use with this NWP as of 

the date of this notice. This RGL is 

available on the Internet at: http:// 

www.usace.army.mil/cw/cecwo/reg/rgls/ 

rgl_05_07_v2.pdf. The lists of approved 

categorical exclusion activities 

referenced in RGL 05–07 represents 

impacts that are minor in nature, both 

individually and collectively. A limiting 

principle on the nature of activities 

exists because each government agency 

has inherent and mission-specific 

responsibilities and projects, and 

activities proposed by a specific agency 

within an approved categorical 

exclusion are similar in nature. The 

primary Federal action agency 

determines that the activities are 

categorically excluded from further 

environmental review. We believe that 

normally these activities will have no 

more than minimal adverse effects on 

the aquatic environment, individually 

and cumulatively. However, division 

and district engineers can condition 

such activities where necessary to 

ensure there will be no more than 

minimal adverse effects on the aquatic 

environment, or exercise discretionary 

authority to require an individual 

permit for the work. 

Two commenters asserted that the 

NWP fails to comply with a statutory 

requirement that the activities have 

minimal impacts individually and 

cumulatively. One of these commenters 

said that the Corps’ estimate of 1,020 

acres of impact to waters of the United 

States represents a significant impact. 

We disagree with this assertion. Preconstruction notification is required for 

certain approved categorical exclusions 

that apply to activities that have the 

potential to result in more than minimal 

individual and cumulative adverse 

effects on the aquatic environment. In 

general, impacts authorized by this 

NWP are not significant because they 

are individually minor, are widely 

distributed across a vast area, and are 

scattered across many watersheds. In 

addition, compensatory mitigation 

offsets the authorized losses, and helps 

ensure that the authorized activities 

result in minimal adverse effects on the 

aquatic environment. 

One commenter objected to the lack of 

specificity regarding the method of 

solicitation of public comments if new 

categorically excluded activities are 

proposed. 

When proposing to add categorical 

exclusions for use with this NWP, Corps 

Headquarters publishes a proposal in 

the ‘‘Notices’’ section of the Federal 

Register. Public comment will be 

solicited through this notice, and all 

comments received will be thoroughly 

considered when the Corps makes its 

determination regarding those proposed 

categorical exclusions. 

One commenter asked that the ‘‘Note’’

at the end of this NWP be expanded to 

list all of the agencies or departments 

that have categorical exclusions 

approved for use under this NWP. One 

commenter believed that referencing 

RGLs in the NWP is not sufficient, and 

suggested that the list of approved 

activities and pre-construction 

notification requirements be wholly 

included within the text of the permit 

rather than referenced to a separate 

document. Another commenter stated 

that the pre-construction notification 

requirements are vague, and 

recommended stating the preconstruction notification requirements 

within the text of the NWP or listing the 

specific RGL to refer to for those preconstruction notification requirements. 

We have modified the ‘‘Note’’ by 

adding a sentence listing the agencies 

with approved categorical exclusions. 

Listing the approved activities and preconstruction notification requirements 

in the text of the permit is impractical, 

because of the lengths of those lists. In 

addition, simply referencing the list of 

RGLs is more useful because additional 

RGLs may be issued if more categorical 

exclusions are approved for use with 

this NWP. 

One commenter asked that the text of 

this NWP be amended to acknowledge 

that state transportation agencies can 

legally assume the responsibility for 

categorical exclusion determinations for 

the Federal Highway Administration 

(FHWA). 

The current text of the NWP states 

that activities ‘‘undertaken, assisted, 

authorized, regulated, funded, or 

financed’’ in whole or in part by a 

Federal agency are eligible to be 

considered by the Corps for possible 

approval as a categorical exclusion. We 


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believe that the current text is sufficient 

and there is no need to restate or affirm 

the relationships between the FHWA 

and the state transportation agencies, 

which generally fall into one or more of 

these categories. 

This NWP is reissued as proposed. 

NWP 24. Indian Tribe or State 

Administered Section 404 Programs. We 

proposed to add Indian tribes to this 

NWP, since they can be approved by 

EPA to administer the section 404 

program. No comments were received. 

This NWP is reissued as proposed. 

NWP 25. Structural Discharges. No 

changes to this NWP were proposed. 

One commenter stated that it is difficult 

to perform these types of activities 

without some minor related temporary 

construction activity. They suggest 

adding a statement that allows minor 

construction activities. 

The construction of these structural 

members is usually accomplished by 

installing sheeting or pilings to 

construct forms, which are then filled 

with concrete, sand, rock, or other 

materials. The installation of the 

sheeting or pilings usually does not 

result in a discharge of fill material that 

would require section 404 

authorization. However, in cases where 

temporary construction, access, and 

dewatering activities are necessary to 

complete the activities authorized by 

this NWP, those temporary activities 

may be authorized by NWP 33, a 

regional general permit, or an individual 

permit. 

The NWP is reissued as proposed. 

NWP 27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. We proposed to modify this 

NWP by requiring reporting to the 

district engineer for those activities that 

do not require pre-construction 

notification. We also proposed to add 

shellfish seeding to the list of examples 

of activities authorized by this NWP, 

and remove the restriction limiting the 

use of this NWP only to those mitigation 

banks that have been approved in 

accordance with the 1995 mitigation 

banking guidelines. In addition, we 

proposed to prohibit the use of the NWP 

to authorize the conversion of natural 

wetlands. 

We have modified the first paragraph 

of this NWP to more clearly present the 

general categories of authorized 

activities. 

One commenter supported the 

broadening of the title of this NWP to 

include all aquatic habitats. One 

commenter said that this NWP has the 

potential to authorize projects with 

significant adverse impacts. One 

commenter said that this NWP should 

be revoked, because it could result in 

losses of wetland function and habitat 

and other adverse impacts to the aquatic 

environment. One commenter stated 

that there should be an acreage limit on 

this NWP. Two commenters said that 

wetland impacts should be limited to 2 

acres, and another commenter stated 

that stream impacts should be limited to 

2,000 linear feet. Another commenter 

stated that the lack of an acreage limit 

on this NWP does not encourage 

applicants to minimize adverse impacts. 

This commenter suggested a 1⁄2 acre 

limit for wetland fills and a 300 linear 

foot limit for stream impacts. 

This NWP authorizes aquatic habitat 

restoration, establishment, and 

enhancement activities, provided those 

activities result in net increases in 

aquatic resource functions and services. 

Its use will not cause significant adverse 

effects on the overall aquatic 

environment. We do not believe there 

should be an acreage limit on this NWP, 

because of the requirement for these 

projects to result in net increases in 

aquatic resource functions and services. 

Moreover, all activities authorized 

under this NWP will be reviewed in 

advance by the Corps, either through the 

pre-construction notification 

requirement, or through the reporting 

requirement for projects conducted 

under authorities of other Federal 

agencies. 

One commenter recommended 

prohibiting establishment of open water 

areas in existing wetlands and streams, 

and prohibiting the relocation of all 

aquatic resources. One commenter 

recommended removing the references 

to waterfowl impoundments because 

those impoundments may be considered 

enhancements by some people. This 

commenter said the establishment of 

impoundments in streams or natural 

wetlands should not be allowed for any 

reason. One commenter requested 

clarification whether this NWP 

authorizes green-tree reservoirs. One 

commenter suggested allowing dam 

removal activities to be authorized by 

this NWP. One commenter said that this 

NWP should authorize stream 

establishment, in cases where impaired 

or degraded streams can be relocated to 

provide net benefits to the aquatic 

environment and the overall watershed. 

We have modified the text of this 

NWP, by removing the reference to 

establishing an impoundment for 

wildlife habitat. This NWP does not 

authorize green-tree reservoirs, because 

those activities generally degrade 

natural wetlands and would not result 

in a net increase in aquatic resource 

functions and services. Discharges of 

dredged or fill material into waters of 

the United States for the continued 

operation of existing green-tree 

reservoirs may be authorized by NWP 

30. New green-tree reservoirs may be 

authorized by individual permits or 

regional general permits. This NWP 

prohibits the conversion of streams or 

natural wetlands to other aquatic habitat 

types or uplands, except for the 

relocation of non-tidal waters on the 

project site. We have also simplified the 

language regarding the relocation of 

non-tidal waters, including non-tidal 

wetlands, on the project site. The 

requirement that such relocations 

provide net gains in aquatic resource 

functions and services has been 

retained. Dam removal activities can be 

authorized by this NWP, provided they 

meet the requirements for its use, 

including that there is a net increase in 

aquatic resource functions and services. 

We have modified the third paragraph 

of this NWP to state that this NWP can 

be used to authorize the relocation of 

non-tidal streams, provided there are 

net increases to aquatic resource 

functions and services. 

One commenter stated that using this 

NWP to authorize the relocation of nontidal waters, including non-tidal 

wetlands, on the project site as long as 

there are net gains in aquatic resource 

functions and services, appears to 

contradict the provision prohibiting the 

conversion of streams or natural 

wetlands to another aquatic use. This 

commenter indicated that there will be 

different interpretations of the relative 

value of certain aquatic resource 

functions and services. This commenter 

also said that temporal lags associated 

with replacing certain wetland types, 

such as forested wetlands, should be 

considered. 

The relocation of non-tidal waters on 

a project site does not necessarily 

contradict the provision prohibiting the 

conversion of streams or natural 

wetlands to another aquatic habitat 

type, if comparable streams or wetlands 

are restored or established elsewhere on 

the project site. District engineers will 

determine compliance with these 

provisions on a case-by-case basis, in 

response to a pre-construction 

notification or a report. We recognize 

that relocating non-tidal waters may 

result in temporal losses of certain 

aquatic resource functions and services, 

while the relocated waters undergo 

ecosystem development. To comply 

with these provisions of this NWP, the 

net increases in aquatic resource 

functions and services does not need to 

occur immediately after the NWP 27 

activity has been constructed. However, 

those net increases need to occur over 

time through ecosystem development 

processes as a result of a successful 


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aquatic habitat restoration, 

establishment, or enhancement activity. 

Two commenters noted that 

conversion of streams or wetlands to 

other aquatic uses is prohibited but 

conversions of waters to uplands are not 

prohibited. Three commenters 

supported the proposed language 

prohibiting conversion of streams or 

natural wetlands to other aquatic uses. 

Another commenter supported the 

language prohibiting conversion of 

wetlands to other aquatic uses, but said 

that it may limit the usefulness of this 

NWP, as it will not be able to authorize 

large ecosystem restoration projects that 

involve conversions of wetlands to other 

aquatic types, even where there are net 

benefits for the aquatic environment. 

We have modified this NWP to 

prohibit the conversion of streams or 

natural wetlands to uplands. This 

prohibition does not apply to projects 

involving the relocation of non-tidal 

waters on the project site, as long as 

those activities result in net increases in 

aquatic resource functions and services. 

Large ecosystem restoration projects that 

involve conversions of aquatic habitat to 

other aquatic uses are more 

appropriately authorized through either 

regional general permits or individual 

permits. 

To prevent re-arrangement of 

wetlands within a single development 

tract, one commenter asked that this 

NWP prohibit the relocation of aquatic 

habitat types on parcels where a local 

planning document exists for the 

development. One commenter objected 

to prohibiting the conversion of natural 

wetlands to other aquatic uses on the 

grounds that NWPs are intended to 

allow any activities with minimal 

adverse effects. This commenter stated 

that some conversions enhance 

ecosystem functions. 

This NWP can be used to authorize 

relocation of aquatic habitats on a 

project site, even those with 

development activities, provided there 

are net gains in aquatic resource 

functions and services. These activities 

can be beneficial in cases where the 

development activity could have 

indirect adverse effects on the functions 

of existing aquatic resources on the 

project site, and where relocating those 

aquatic resources would result in 

enhanced ecosystem functions. We have 

revised the text of this NWP to prohibit 

the conversion of natural wetlands to 

other uses, unless that conversion is 

part of relocating non-tidal waters on 

the project site. This NWP does not 

authorize stream channelization, which 

often involves extensive armoring and 

straightening of stream channels. 

One commenter suggested allowing 

the use of NWP 27 for the restoration 

and enhancement of tidal streams and 

tidal open waters. Another commenter 

said that this NWP should authorize the 

relocation and/or conversion of any 

tidal waters, provided the proposed 

work would result in net increases in 

aquatic resource functions and services. 

One commenter stated that this NWP 

should not authorize the construction of 

impoundments or partial 

impoundments in tidal wetlands or 

estuarine waters. 

This NWP does not authorize the 

restoration of tidal streams and tidal 

open waters, but may authorize the 

restoration of riparian areas next to such 

waters. The restoration of tidal streams 

and other tidal open waters that involve 

more than restoring riparian areas is 

more appropriately authorized by other 

Department of the Army permits, since 

those activities may result in more than 

minimal adverse effects on the aquatic 

environment. We do not believe it 

would be appropriate to modify this 

NWP to authorize those activities. We 

maintain our position that this NWP 

should not authorize the relocation or 

conversion of tidal waters. Those 

activities may be authorized by 

individual permits or regional general 

permits. This NWP does not authorize 

the conversion of tidal waters to other 

uses, such as impoundments or partial 

impoundments. 

One commenter said that many 

activities proposed as restoration 

actually degrade habitat or result in a 

net loss of habitat, and stated that preconstruction notification should be 

required for all activities authorized by 

this NWP, to determine the beneficial 

effects and whether the activity is 

protective of tribal resources. 

Pre-construction notification is 

required for activities authorized by this 

NWP, except for those activities 

conducted in accordance with binding 

agreements between certain Federal 

agencies or their designated state 

cooperating agencies, voluntary wetland 

activities documented by the NRCS or 

USDA Technical Service Provider 

pursuant to NRCS Field Office 

Technical Guide standards, or the 

reclamation of surface coal mining 

lands, in accordance with permits 

issued by the Office of Surface Mining 

or the applicable state agency. For those 

activities that do not require preconstruction notification, reporting to 

the district engineer is required. In the 

latter cases, the district engineer can 

review the documentation provided 

through reporting to ensure that the 

activity qualifies for NWP authorization. 

The reporting requirements provide 

district engineers with the opportunity 

to review aquatic habitat restoration, 

establishment, and enhancement 

activities conducted under the purview 

of other government entities, to ensure 

that those activities result in net 

increases in aquatic resource functions 

and services. The pre-construction 

notification requirements, as well as the 

reporting requirements, will help ensure 

that this NWP authorizes only activities 

that comply with the terms and 

conditions of this NWP, including 

general condition 16, Tribal Rights. 

One commenter stated that the 

reporting requirement for voluntary 

NRCS-related wetland projects would be 

burdensome, and suggested that 

requiring NRCS documentation could 

discourage voluntary wetland 

restoration activities. Another 

commenter said that there appears to be 

little difference between the reporting 

and pre-construction notification 

provisions, and suggested requiring preconstruction notifications for all NWP 

27 activities. Two commenters 

supported the requirement that copies 

of restoration agreements be submitted. 

One commenter recommended requiring 

pre-construction notifications and 

interagency coordination for all projects 

using NWP 27, to ensure that 

development activities are not 

conducted as NWP 27 activities. A 

commenter objected to requiring the 

submittal of restoration agreements to 

fulfill the reporting requirement, citing 

privacy concerns. This commenter said 

that alternative types of information 

could be submitted instead to report 

proposed NWP 27 activities conducted 

under these agreements. One 

commenter stated that the Corps and 

other agencies should be required to 

approve wetland enhancement, 

restoration, or establishment agreements 

referenced in the reversion provisions of 

NWP 27. 

The pre-construction notification 

requirements are sufficient to ensure 

proper implementation of NWP 27. We 

have clarified the language in the NWP 

to reduce confusion. To avoid 

duplicative efforts by the government, 

pre-construction notification is not 

required for activities conducted under 

agreements or arrangements with other 

state or Federal government agencies. 

Pre-construction notification is required 

for all other activities. The reporting 

requirement will provide a mechanism 

whereby the Corps can review proposed 

activities conducted under other agency 

programs, to ensure that they comply 

with the terms and conditions of this 

NWP. We are modifying the reporting 

requirement to allow the submittal of 

project descriptions and plans, in lieu of 


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binding agreements executed between 

agencies and landowners. 

It would be inappropriate to require 

Corps approval of wetland 

enhancement, restoration, or 

establishment agreements executed and 

administered by other agencies. For 

those activities that require preconstruction notification and will result 

in the loss of greater than 1⁄2 acre of 

waters of the United States, agency 

coordination is required (see paragraph 

(d) of general condition 27). 

One commenter suggested modifying 

the reversion, reporting, and notification 

provisions by referencing actions 

documented by ‘‘NRCS or USDA 

Technical Service Provider pursuant to 

NRCS Field Office Technical Guide 

Standards’’ instead of ‘‘NRCS 

regulations,’’ since many of these 

wetland restoration, enhancement, and 

establishment activities are performed 

by technical service providers, who 

must be certified by NRCS and comply 

with the Field Office Technical Guide 

standards. We concur with this 

recommendation, and have made 

appropriate changes to the text of this 

NWP. 

One commenter said that replacing 

the word ‘‘values’’ with ‘‘services’’

demeans the functions provided by a 

healthy ecosystem, unless the term 

‘‘functions’’ is specifically retained. 

Another commenter remarked that 

replacing the word ‘‘values’’ with 

‘‘services’’ is inconsistent with the 

common industry vernacular. They 

suggest using the word ‘‘functions’’

instead of ‘‘services.’’

We are retaining the term ‘‘functions’’

in the text of this NWP, and are 

replacing the word ‘‘values’’ with 

‘‘services’’ because ecosystem services 

provide a more objective measure of the 

importance of aquatic resource 

functions to human populations. The 

terms ‘‘functions’’ and ‘‘services’’ are 

not equivalent, and therefore it would 

not be appropriate to replace the term 

‘‘services’’ with ‘‘functions.’’ Services 

are the benefits that humans derive from 

the functions performed by wetlands 

and other aquatic resources. The term 

‘‘services’’ is now being used in place of 

‘‘values’’ in the ecological economics 

literature, because of the difficulty in 

assigning value to ecosystem services. 

As discussed in the September 26, 2006, 

Federal Register notice, values may 

relate to either monetary or nonmonetary measures, but services can be 

described in physical terms that are 

easier to evaluate and address, where 

necessary, in NWP authorization letters 

and special permit conditions. 

Two commenters supported allowing 

the use of NWP 27 to authorize the 

construction of mitigation banks. One 

commenter requested clarification that 

this NWP could be used for wetland 

mitigation banks, and one commenter 

asked that the NWP apply to all 

mitigation banking projects, not just 

those with a signed mitigation banking 

agreement. Two commenters said that 

the construction of mitigation banks 

should not be authorized by NWP 27, 

but should be authorized by individual 

permits instead. One commenter stated 

that it would be acceptable to allow the 

use of NWP 27 for mitigation bank 

construction with a caveat that impacts 

associated with mitigation bank 

construction be deducted from any 

available credit the mitigation bank 

develops. One commenter requested 

that this NWP contain language stating 

that compensatory mitigation is 

required for activities authorized by 

NWP 27, but another commenter 

suggested that no compensatory 

mitigation should be required for 

impacts associated with construction of 

compensatory mitigation projects. 

This NWP can be used to authorize 

aquatic resource restoration, 

establishment, and enhancement 

activities necessary for the construction 

of mitigation banks. It is not necessary 

for the mitigation bank proponent to 

obtain a signed mitigation banking 

instrument prior to conducting the NWP 

27 activity, but the mitigation bank 

proponent needs to understand that 

activities conducted prior to approval of 

a banking instrument may or may not be 

approved in any final instrument. The 

Corps thus recommends that 

construction of mitigation banks not 

begin until a final instrument has been 

signed. Requiring compensatory 

mitigation for losses of waters of the 

United States as a result of NWP 27 is 

at the discretion of the district engineer. 

The crediting of a mitigation bank will 

be determined by the district engineer 

during the approval process for the 

mitigation banking instrument. Any 

adverse impacts to aquatic resources 

resulting from construction of the bank 

would certainly be considered in that 

determination. 

Two commenters said that this NWP 

should require permittees to plant 

native species at the site. They said that 

the proposed language contains too 

much flexibility. One commenter said 

that NWP 27 should not authorize 

activities in waters inhabited by 

anadromous fish. One commenter stated 

that the U.S. Fish and Wildlife Service 

must concur with projects in which 

machinery must work in waters where 

endangered or threatened species are 

present. One commenter indicated that 

this NWP should authorize work in 

flowing waters where the activity will 

result in long-term stability and habitat 

benefits. 

It would be inappropriate to require 

permittees to plant only native species 

at the project site. Native plant materials 

may not be available for all of these 

projects, and it is difficult to define 

precisely what constitutes a ‘‘native’’

species. The activities authorized by 

this NWP are required to result in net 

increases in aquatic resource functions 

and services, which should benefit 

anadromous fish species. However, 

district engineers will review preconstruction notifications and other 

reported activities to determine if the 

proposed aquatic habitat restoration, 

establishment, or enhancement activity 

would have more than minimal adverse 

effects on anadromous fish species, or 

require consultation under Section 7 of 

the Endangered Species Act. In 

addition, division and district engineers 

can develop regional conditions or casespecific conditions to ensure that 

potential impacts to anadromous fish 

are minimal, or exercise discretionary 

authority to require an individual 

permit for the work if impacts are 

expected to be more than minimal. 

Compliance with the other general 

conditions for the NWPs, including 

general condition 9, Management of 

Water Flows, is required, though general 

condition 9 specifically allows activities 

that alter the pre-construction course, 

condition, capacity, and location of 

open waters if they benefit the aquatic 

environment. 

One commenter requested 

clarification of what constitutes a 

‘‘small’’ nesting island, and requested 

that the NWP state that approved water 

quality standards cannot be violated 

during construction of small nesting 

islands. Another commenter said that 

pre-construction notification should be 

required for the construction of small 

nesting islands in special aquatic sites. 

One commenter asked for a definition of 

the term ‘‘enhancement activities.’’ One 

commenter suggested requiring 

monitoring of stream restoration 

projects, with mandatory corrective 

actions for projects that are not 

successful. 

The district engineer has the 

discretion to determine what a ‘‘small 

nesting island’’ is for the purposes of 

this NWP. Either pre-construction 

notification or reporting is required for 

all activities authorized by this NWP, 

which will provide district engineers 

with opportunities to review all 

proposed activities, including the 

construction of small nesting islands, to 

determine those activities comply with 

the terms and conditions of the NWP. 


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The term ‘‘enhancement’’ is defined in 

the ‘‘Definitions’’ section of the NWPs. 

District engineers have the authority to 

require additional monitoring or 

corrective measures on a case-specific 

basis. We believe it is unnecessary to 

restate those authorities in the text of 

this NWP. 

One commenter said that this NWP 

should prohibit the widening or 

straightening of stream channels, the 

removal of gravel bars, the destruction 

of woody vegetation, and the in-stream 

use of bulldozing or heavy equipment. 

Another commenter stated that NWP 27 

should require the use of natural stream 

channel design for in-stream work. Two 

commenters suggested that this NWP 

should not authorize the use of riprap 

or other armoring. One commenter 

suggested limiting the use of this NWP 

to restoration of a stream to its historic 

non-degraded condition to prevent the 

use of this NWP for construction of 

flood control projects. 

This NWP does not authorize stream 

channelization activities. It may be 

necessary to temporarily impact gravel 

bars or vegetation during the 

construction of stream restoration and 

enhancement activities. After the 

construction of the stream restoration or 

enhancement project, the stream 

channel should move water and 

sediment in a manner that will result in 

a channel morphology that provides 

habitat for a diverse community of 

species. That restored or enhanced 

habitat will include gravel bars, if the 

bed load carried by the stream includes 

a sufficient proportion of gravel. In 

addition riparian vegetation will 

normally be planted or allowed to grow 

back to replace the impacted riparian 

vegetation after construction activities 

have been completed. In-stream use of 

heavy equipment is not prohibited, 

because such equipment is usually 

necessary to conduct stream restoration 

and enhancement activities. In response 

to a pre-construction notification, or the 

review of the other Federal agency 

agreement, the district engineer will 

determine whether the proposed 

activity complies with the terms and 

conditions of the NWP, including the 

requirement for the activity to result in 

net increases in aquatic resource 

functions and services. It would be 

inappropriate to require, in the text of 

this NWP, specific design or 

construction methods, or prohibit the 

use of riprap or other armoring. 

Armoring using riprap or other 

materials can be a necessary component 

of beneficial aquatic habitat restoration, 

establishment, and enhancement 

projects. 

We believe that limiting the use of 

this NWP for the sole purpose of 

restoring streams to historic conditions 

would be overly restrictive, and would 

effectively prohibit its use for other 

beneficial restoration activities. Further, 

the pre-construction notification and 

reporting requirements for this NWP 

will help ensure that activities 

conducted under this NWP comply with 

the purposes and intent of the NWP, as 

well as its terms and condition. 

Two commenters said that the 

prohibition against stream 

channelization conflicts with general 

condition 9, Management of Water 

Flows, which allows stream restoration 

and relocation for some NWP activities. 

One commenter suggested that the 

Corps remove the channelization 

restriction from NWP 27 and expand the 

definition of ‘‘stream channelization’’ to 

authorize activities beneficial to the 

aquatic environment. 

As noted above, general condition 9 

allows the use of any NWP for projects 

that alter the pre-construction course, 

condition, capacity, and location of 

open waters if they benefit the aquatic 

environment. The removal of the stream 

channelization prohibition from NWP 

27 could inadvertently allow projects to 

proceed under this NWP that have more 

than minimal adverse impacts on the 

aquatic environment. We also believe 

that it is unnecessary to modify the 

definition of stream channelization as 

suggested because the definition 

provides an accurate and concise 

description of what constitutes stream 

channelization. 

One commenter recommended 

limiting the use of NWP 27 to projects 

conducted by or sponsored by state or 

federal agencies. One commenter 

recommended removing the reference to 

prior converted croplands. 

We disagree that use of this NWP 

should be limited to activities 

conducted or sponsored by state or 

federal agencies, however, projects not 

conducted pursuant to authorities of 

other agencies do require a preconstruction notification. The reference 

to prior converted croplands in the 

reversion provision is necessary, since 

prior converted croplands are not 

considered to be waters of the United 

States (see 33 CFR 328.3(a)(8)). 

One commenter suggested including a 

definition for shellfish seeding in the 

NWP. One commenter questioned 

whether the Corps has regulatory 

jurisdiction over shellfish aquaculture 

and restoration activities. Another 

commenter requested clarification 

whether pre-construction notification is 

required for shellfish seeding authorized 

by this NWP. One commenter 

recommended removing the preconstruction notification requirement 

for shellfish activities that have the 

approval of other government agencies 

with resource management 

responsibilities. Two commenters said 

that state natural resource agencies 

should be exempted from the preconstruction notification requirements if 

the shellfish seeding activity is done 

over an unvegetated bottom, since those 

activities are already addressed by other 

state and Federal permit processes. Two 

other commenters expressed concern 

that the proposed changes to the NWP 

would adversely affect communitybased shellfish restoration efforts, 

including locally-based oyster 

restoration programs. They said that the 

pre-construction notification 

requirements, or requiring any permit 

for shellfish restoration, would be 

overly burdensome and would 

adversely affect community-based 

programs that are already operating with 

volunteer staffs, minimal budgets, and 

limited resources. 

We are providing a definition of 

‘‘shellfish seeding’’ in the ‘‘Definitions’’

section of the NWPs. This definition 

was derived from the definition 

provided in the preamble discussion for 

proposed NWP D, Commercial Shellfish 

Aquaculture Activities (see 71 FR 

56275). Shellfish aquaculture and 

restoration activities require Department 

of the Army authorization, if they 

involve discharges of dredged or fill 

material into waters of the United States 

and/or structures or work in navigable 

waters of the United States. On-going 

commercial shellfish aquaculture 

activities may be authorized by NWP 48 

and shellfish restoration activities may 

be authorized by NWP 27. New 

commercial shellfish aquiculture 

activities may be authorized by regional 

general permits or individual permits. 

The pre-construction notification 

requirement is necessary for shellfish 

habitat restoration activities, except 

those conducted under one of the other 

listed authorities, to ensure that those 

projects comply with the terms and 

conditions of this NWP and do not 

cause more than minimal adverse 

effects. However, the Corps does not 

believe that the PCN requirement is 

overly burdensome and it should not 

limit the ability of community-based 

programs to conduct such activities. 

One commenter opposed modifying 

this NWP to authorize shellfish 

restoration activities because they 

believe that these projects can have 

more than minimal impact on benthic 

habitat. One commenter said that 

shellfish seeding should not be 

authorized by this NWP. Another 


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commenter suggested that fill placement 

for shellfish seeding or shellfish bed 

preparation activities should not qualify 

for any NWP and should only be 

evaluated under individual permit 

processes. Several commenters 

recommended that shellfish seeding 

should be authorized by this NWP. A 

number of commenters stated that 

shellfish seeding can be used to protect 

or restore valuable aquatic habitats since 

construction of oyster reefs has been 

used to attenuate wave energy as part of 

coastal restoration strategies. 

The restoration of oyster habitat, as 

well as the habitat of other shellfish 

species, usually provides substantial 

benefits to the overall aquatic 

environment. Shellfish help improve 

water quality and other habitat 

characteristics of estuarine and marine 

waters. Shellfish seeding is often a 

necessary component of restoration 

activities, when the objective is to 

increase populations of shellfish. 

District engineers will review preconstruction notifications or agreements 

with other agencies to ensure that these 

activities result in minimal individual 

and cumulative effects on the aquatic 

environment and other public interest 

factors. In response to a preconstruction notification, the district 

engineer can add special conditions to 

the NWP authorization or exercise 

discretionary authority and require an 

individual permit. 

One commenter remarked that 

shellfish seeding practices could be 

considered an aquaculture activity, and 

said that the requirements of NWP 27 

could be a significant barrier to 

aquaculture development. Another 

commenter indicated that projects 

solely associated with shellfish 

restoration could be authorized by NWP 

27, but suggested that it would be more 

appropriate to authorize such activities 

under the proposed NWP for 

commercial shellfish aquaculture 

activities. One commenter expressed 

concern that NWP 27 may overlap with 

NWP 48. One commenter stated that 

some oyster restoration and 

enhancement is done by commercial 

shellfishing operations that harvest only 

wild oysters. In some cases, shellfish 

husbandry or restoration is required by 

other regulatory agencies, and the 

commenter stated that neither NWP 27 

nor NWP 48 allow this activity. One 

commenter asked if each oyster bed 

restoration would require a separate 

permit, or could an entity apply for a 

single permit to cover all of their 

shellfish restoration projects. They 

recommended establishing a single 

permit that any state natural resource 

agency could use at any time to 

eliminate the need for those agencies to 

obtain separate permits for numerous 

individual projects. 

This NWP does not authorize 

commercial aquaculture activities. It 

authorizes shellfish habitat restoration 

activities, including shellfish seeding, 

that are conducted to restore 

populations of shellfish in navigable 

waters of the United States. Although 

these restored shellfish populations may 

be harvested at a later time by licensed 

fisherman, the objective of the activities 

authorized by this NWP must be to 

restore populations of shellfish in 

navigable waters of the United States. 

This NWP does not authorize structures 

or work, such as nets and anchors, that 

are used to reduce or eliminate 

predation of shellfish growing in these 

restored habitats. On-going commercial 

aquaculture activities may be authorized 

by NWP 48, regional general permits, or 

individual permits. New commercial 

aquaculture activities may be authorized 

by regional general permits or 

individual permits. This NWP 

authorizes single and complete shellfish 

habitat restoration activities. Regional 

general permits or individual permits 

may be issued by district engineers to 

authorize shellfish restoration programs. 

This NWP is reissued, with the 

modifications discussed above. 

NWP 28. Modifications of Existing 

Marinas. No changes were proposed for 

this NWP. One commenter said that 

modifications in special aquatic sites, 

such as vegetated shallows or coral 

reefs, should require pre-construction 

notification. This commenter also 

requested clarification whether this 

NWP authorizes pile driving, and 

recommended requiring preconstruction notification for such 

activities. 

This NWP authorizes the installation 

of piles for the reconfiguration of 

marinas. The reconfiguration of existing 

marinas generally results in minimal 

individual and cumulative adverse 

effects, since these activities are limited 

to areas currently used for marinas. 

Therefore, it is unnecessary to require 

pre-construction notification for these 

activities. However, division engineers 

can regionally condition this NWP to 

require pre-construction notification for 

activities in certain areas. 

This NWP is reissued as proposed. 

NWP 29. Residential Developments. 

We proposed to modify this NWP by 

incorporating the residential 

development provisions of NWP 39, so 

that there would be one NWP to 

authorize single unit and multiple unit 

residential developments, including 

residential subdivisions. We also 

proposed to reduce the scope of 

applicable waters for this NWP, by 

prohibiting its use to authorize 

discharges of dredged or fill material 

into non-tidal wetlands adjacent to tidal 

waters. In addition, we proposed to 

require pre-construction notification for 

all activities. 

One commenter requested that a 

definition of ‘‘residential property’’ be 

provided. This commenter also said that 

this NWP should include a provision 

prohibiting its use with NWP 39 to 

authorize mixed use developments. Two 

commenters objected to including 

multiple-unit residential developments 

in NWP 29 because they felt it is 

inconsistent with the original intent of 

NWP 29. Several commenters stated that 

including multiple-unit residential 

development would lead to problems 

with water quality certifications or local 

government decisions. Two commenters 

said that single-family and multi-unit 

developments are not similar in nature 

while another questioned the need and 

the rational for the proposed change. 

This NWP utilizes the commonly 

accepted definition of what constitutes 

a residential property. We do not agree 

that there should be a prohibition 

against combining NWPs 29 and 39 to 

authorize mixed use developments, 

because the terms and conditions of 

those NWPs, including the preconstruction notification requirements 

and general condition 24, Use of 

Multiple Nationwide Permits, will help 

ensure that those activities will result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

review factors. As discussed in the 

preamble of the September 26, 2006, 

Federal Register notice, the proposed 

changes effectively eliminate the 

previous NWP 29. Previously, single 

family residential projects could choose 

between NWPs 29 and 39. NWP 39 had 

a higher acreage limit, but NWP 29 

could allowed activities in wetlands 

adjacent to tidal waters. We have 

determined that that all residential 

projects using an NWP, whether singlefamily or multi-family, should face the 

same set of requirements. In particular, 

we have determined that residential 

projects in wetlands adjacent to tidal 

waters should not be authorized through 

an NWP, so we are combining all 

residential development activities in 

NWP 29 and eliminating its use in 

wetlands adjacent to tidal waters. We 

believe the 1⁄2 acre limit previously 

included in NWP 39 will ensure that 

projects undertaken only in non-tidal 

waters and their adjacent wetlands will 

not have more than minimal adverse 

effects. Limits for multi-family 

residential projects have not changed, 


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these activities have merely been shifted 

into NWP 29. States concerned with 

multiple unit residential developments 

may add stipulations to their water 

quality certifications that differentiate 

between single-family and multi-unit 

developments. Local governments can 

address their concerns over residential 

development through their planning 

and zoning processes. Also, the Corps is 

expanding the pre-construction 

notification requirement to include all 

projects authorized under this NWP, to 

enhance our ability to identify projects 

that may have more than minimal 

adverse effects. 

One commenter suggested we add 

‘‘single-unit residential subdivision’’ to 

the list of authorized activates in the 

first sentence. 

We have added the phrase 

‘‘residential subdivision’’ to the list of 

activities authorized by this NWP. This 

NWP authorizes residential 

subdivisions with multiple singlefamily units or multiple-family units. 

Several commenters objected to 

raising the acreage limit from 1⁄4 acre to 1⁄2 acre. One commenter said that the 1⁄2

acre limit will result in substantial 

cumulative losses of waters of the 

United States. Two comments 

recommended acreage limits of one or 

two acres. One commenter asked why 

the 1⁄2 acre limit is not for associated 

multi-unit developments when it is 

expressed as the limit for single-family 

residences. 

As noted above, the effective acreage 

limit for residential projects has not 

been raised. We have simply removed 

the option of using an NWP with a 1⁄4

acre threshold to authorize single-family 

projects in wetlands adjacent to tidal 

waters. Through the review of preconstruction notifications, district 

engineers will monitor the use of this 

NWP so that more than minimal 

cumulative adverse effects do not occur. 

We disagree that increasing the acreage 

limit to one to two acres would result 

in activities that have minimal impacts 

on the aquatic environment. The 1⁄2 acre 

limit applies to any type of residential 

subdivision (single-family, multi-family, 

or a combination of both), as it did 

previously when these projects were 

authorized by NWP 39. 

Some commenters objected to 

requiring pre-construction notification 

for all activities, and suggested changing 

the pre-construction notification 

threshold to 1⁄10 acre. Three commenters 

proposed a 1⁄10 acre pre-construction 

notification threshold for single-family 

developments. Three commenters 

supported the proposed preconstruction notification threshold. One 

commenter suggested establishing a 

graduated pre-construction notification 

threshold based on the size of the 

overall development. 

We are retaining the requirement for 

pre-construction notification for all 

activities authorized by this NWP. 

Although this will result in an increase 

in the number of pre-construction 

notifications submitted to district 

engineers, we do not believe that it will 

be a substantial increase, since many 

permittees proposing to construct 

residential developments in the past 

have submitted verification requests for 

NWP 39 authorization even when not 

required to do so. The NWP 29 issued 

in 2002 require pre-construction 

notification for all proposed single 

family homes. The pre-construction 

notification threshold will also help 

ensure compliance with general 

condition 17, Endangered Species, and 

general condition 18, Historic 

Properties. A graduated preconstruction notification requirement 

would be unnecessarily complex and 

would not provide as much assurance 

that only activities with no more than 

minimal adverse effects are authorized. 

Many commenters discussed the 300 

linear foot limit for stream bed impacts. 

Those comments are discussed in a 

separate section of the preamble. We are 

retaining the 300 linear foot limit for 

stream bed impacts, as well as the 

ability for district engineers to provide 

written waivers of the 300 linear foot 

limit for losses of intermittent and 

ephemeral stream beds. 

Several commenters said that this 

NWP should retain the requirement to 

maintain sufficient buffers adjacent to 

all open water bodies, such as streams. 

Some commenters stated that a 

minimum buffer width should be 

required. One commenter supported the 

removal of the buffer requirement and 

addressing the need for riparian areas 

through general condition 20, 

Mitigation. 

The establishment and maintenance 

of riparian areas next to streams and 

other open waters will be required by 

district engineers as compensatory 

mitigation where necessary to ensure 

that the authorized work results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Although the NWP 29 

issued in 2002 contained a requirement 

to establish sufficient vegetated buffers, 

the counterpart language in the 2002 

NWP 39 reflected the use of vegetated 

buffers as components of the 

compensatory mitigation plan for the 

NWP 39 activity, if there were streams 

or other open waters on the project site. 

District engineers will make 

determinations regarding the 

appropriateness and practicability of 

requiring riparian areas, as well as their 

width, in the implementation of general 

condition 20, Mitigation. 

Three commenters said that 

residential developments are not water 

dependent activities, and therefore, 

under the Section 404(b)(1) Guidelines, 

an NWP should not be issued unless all 

practicable alternatives have been 

considered. Some commenters objected 

to authorizing attendant features by 

NWP 29, because they may not be water 

dependent or there may be secondary 

impacts associated with the 

development. 

An activity that is not water 

dependent may still be authorized by 

NWP as long as an appropriate Section 

404(b)(1) Guidelines analysis is 

conducted when the NWP is issued. The 

decision documents for all NWPs, 

including this NWP, that authorize 

discharges under Section 404 of the 

Clean Water Act include a Section 

404(b)(1) Guidelines analysis. 

Two commenters objected to 

including septic fields as attendant 

features and three commenters objected 

to including sports fields and golf 

courses as attendant features. One 

commenter requested a definition of the 

term ‘‘integral part’’ to reduce the 

potential for authorizing golf courses 

that are not directly associated with the 

residential development. One 

commenter objected to the use of the 

NWP for large subdivisions, because of 

potential impacts due to sprawl, traffic, 

and degradation of water quality. 

Septic fields are often necessary 

attendant features for residences, and 

should be authorized where part of a 

single and complete project. Sports 

fields and golf courses may also be 

integral attendant features of residential 

developments. District engineers will 

determine, in response to preconstruction notifications, whether golf 

courses are integral parts of the 

residential development. Impacts of 

large subdivisions will be considered 

during the pre-construction notification 

review process. If such projects would 

have more than minimal adverse effects, 

these will be addressed through projectspecific special conditions or by 

requiring an individual permit. 

One commenter requested that we 

define ‘‘subdivision’’ as an ‘‘area that 

involves all residences that share the 

attendant features.’’ One commenter 

urged that phased developments be 

prohibited since they can result in 

impacts to waters that otherwise can be 

avoided with comprehensive planning 

and permitting. 

Defining the term ‘‘subdivision’’ is 

unnecessary as there is little confusion 


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surrounding the term. Phased 

developments can be authorized by the 

NWP, provided that each phase is a 

single and complete project and has 

independent utility. When reviewing 

pre-construction notifications, district 

engineers will take into account 

individual and cumulative impacts of 

phased developments. We strongly 

support comprehensive planning efforts 

undertaken by local governments as a 

means of reducing impacts to the 

aquatic environment. Where the 

cumulative effects of phased projects 

would be more than minimal, these will 

be addressed through project-specific 

special conditions or by requiring an 

individual permit. 

Four commenters requested that the 

NWP authorize projects in non-tidal 

wetlands adjacent to tidal waters, while 

two comments supported the proposal 

to prohibit the use of the NWP in those 

areas. One commenter requested a 

definition of the term ‘‘adjacent.’’ Two 

commenters objected to removal of 

language concerning minimization of 

on-site and off-site impacts, such as 

avoiding flooding of adjacent lands. 

Limiting the use of this NWP to nontidal waters of the United States, and 

prohibiting its use in non-tidal wetlands 

adjacent to tidal waters is necessary to 

ensure that this NWP authorizes only 

those activities with minimal individual 

and cumulative adverse effects on the 

aquatic environment. Development 

along coastal waters is a growing 

concern with significant potential to 

cause more than minimal adverse 

effects, particularly cumulatively. Such 

projects can be authorized by an 

individual permit following appropriate 

environmental review. The term 

‘‘adjacency’’ is defined at 33 CFR 

328.3(c). For the NWPs, including NWP 

29, requirements to avoid and minimize 

impacts to waters of the United States 

are addressed through general condition 

20, Mitigation. 

District engineers will review preconstruction notifications to ensure that 

all practicable on-site avoidance and 

minimization has been accomplished. In 

response to a pre-construction 

notification, the district engineer may 

require compensatory mitigation to 

ensure that the authorized activity 

results in minimal adverse 

environmental effects (see 33 CFR 

330.1(e)(3)). 

One commenter said that NWP 29 

should not be issued because it results 

in more than minimal adverse impacts 

particularly when salmonids are 

present. One commenter stated that this 

NWP should not authorize 

impoundments. One commenter said 

that there should be an exemption for 

residential developments in coastal 

areas in the eastern United States. 

Potential impacts to salmon species 

are more appropriately addressed 

through regional conditions. Division 

engineers may regionally condition this 

NWP to restrict or prohibit its use in 

waters inhabited by salmonids. 

Impoundments may be authorized as 

attendant features, after reviewing the 

pre-construction notification. Section 

404 permits are required for discharges 

of dredged or fill material into waters of 

the United States to construct 

residential developments. Such 

activities do not qualify for exemptions 

under Section 404(f)(1) of the Clean 

Water Act. 

This NWP is reissued with the 

modifications discussed above. 

NWP 30. Moist Soil Management for 

Wildlife. We proposed to modify this 

NWP to allow any landowner to use this 

NWP to authorize discharges of dredged 

or fill material into non-tidal waters of 

the United States for the purpose of 

managing wildlife habitat and feeding 

areas. 

Some commenters supported the 

proposed changes to this NWP, since it 

will facilitate the production of large 

amounts of wetland/wildlife habitat and 

conserve the Nation’s native wildlife 

populations. However, other 

commenters expressed concern about 

the use of this NWP by private 

landowners, because they may be 

creating impoundments to increase 

wildlife habitat. One commenter 

recommended requiring interagency 

coordination to provide guidance to 

landowners and to help ensure land 

cover types are not detrimentally 

converted to other land cover types. One 

commenter said that expanding the 

NWP to apply to all landowners would 

result in more than minimal cumulative 

adverse effects. 

We believe that it is appropriate to 

expand the use of this NWP to private 

landowners that have an interest in 

attracting and supporting various 

species of wildlife on their land. This 

NWP does not authorize the 

construction of impoundments, because 

it does not authorize new roads, dikes, 

and water control structures. We believe 

that it is not necessary to require 

interagency coordination for these 

activities because only activities that do 

not result in a net loss of aquatic 

resource functions and services are 

authorized. The terms and conditions 

and the ability of division engineers to 

impose regional and case-specific 

conditions on this NWP, will ensure 

that the activities authorized by this 

NWP will result in no more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. 

One commenter recommended 

imposing a 1⁄2 acre limit on activities 

conducted by private landowners. One 

commenter recommended adding preconstruction notification requirements 

to this NWP, so that district engineers 

can review proposed activities to ensure 

that they comply with the terms and 

conditions of the NWP. One commenter 

indicated that this NWP should 

authorize moist soil management 

activities for native vegetation that are 

not necessarily for wildlife use. 

Since this NWP authorizes only ongoing wildlife management activities 

involving moist soil management, we do 

not believe it is necessary to impose an 

acreage limit or require pre-construction 

notification for these activities. Division 

engineers can regionally condition this 

NWP to require pre-construction 

notification, if there are concerns for the 

aquatic environment or other public 

interest review factors that may need to 

be addressed through case-specific 

review of these activities. Moist soil 

management activities conducted 

primarily for growing native plants may 

be authorized by other NWPs, regional 

general permits, or individual permits. 

Restoration of wetland meadows, 

forested wetlands, and other native 

plant communities may also be 

authorized by NWP 27. 

One commenter suggested changing 

the title of this NWP to ‘‘Maintenance of 

Existing Moist Soil Management Areas 

for Wildlife.’’ One commenter 

recommended modifying the ‘‘Note’’ at 

the end of this NWP to acknowledge 

that maintenance may be exempt under 

Section 404(f) of the Clean Water Act. 

We do not agree that it is necessary 

to change the title of this NWP, because 

the text of the NWP clearly states that 

is authorizes only soil management for 

on-going, site-specific, wildlife 

management activities. We have 

modified the ‘‘Note’’ to include a 

statement concerning the section 404(f) 

exemption. 

This NWP is reissued with the 

modification discussed above. 

NWP 31. Maintenance of Existing 

Flood Control Facilities. We proposed to 

remove the last sentence of the first 

paragraph of this NWP. In addition, we 

proposed to add levees to the list of 

features that can be maintained through 

the authorization provided by this NWP. 

A few commenters stated support for 

the addition of levees to the list of 

features that can be maintained with 

authorization under this NWP. In 

addition, one commenter recommended 

that the Corps exempt or develop a 

streamlined NWP for federally 


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constructed or funded levees where 

maintenance responsibilities for those 

levees have reverted to a local agency. 

We believe that the NWP program is 

already a streamlined permit process 

and discharges associated with federally 

constructed and funded flood control 

projects which have reverted to a local 

agency should still be subject to the 

requirements of this NWP, including the 

establishment of a maintenance 

baseline. At this time, we believe it is 

necessary to conduct a site specific 

verification through the preconstruction notification process to 

ensure that the adverse effects of the 

project are no more than minimal. The 

Corps has no authority to exempt 

discharges of dredged or fill material 

that occur in conjunction with the 

maintenance of the facility, or to waive 

any requirement for necessary 

mitigation. The inclusion of levees in 

this NWP does not preclude 

maintenance of levees that is allowed 

under other NWP authorizations, such 

as NWP 3. 

One commenter stated that, as flood 

control projects constructed by the 

Corps and transferred to a non-federal 

sponsor have a Corps-developed 

Operations and Maintenance (O&M) 

manual, and the sponsor is obligated to 

perform maintenance according to the 

O&M manual, the project’s as-built 

drawings and O&M manual should 

constitute the maintenance baseline. 

Therefore, no maintenance baseline 

submittal should be required. 

The intent of this NWP is to require 

the submittal of a maintenance baseline 

for all projects requesting authorization 

by this NWP. A non-federal sponsor can 

submit the as-built drawings and O&M 

manual from a federally-constructed or 

funded flood control project. In any case 

the maintenance baseline must be 

approved by the district engineer. 

Another commenter suggested that 

the requirement to submit best 

management practices (BMPs) with the 

maintenance baseline documentation be 

eliminated, as BMPs are addressed by 

several general conditions. This 

commenter also requested that we 

clarify the important exception that 

applies to this NWP in regard to the 

general condition 27 requirement that 

the district engineer must approve any 

compensatory mitigation proposal 

before the permittee commences work. 

The Corps disagrees that the 

requirement to submit BMPs is 

adequately addressed by general 

conditions. We believe that inclusion of 

the BMPs in the documentation is 

necessary so that the Corps can ensure 

that the impacts associated with the 

activity will be no more than minimal. 

In addition, the inclusion of certain 

BMPs may reduce the impacts to the 

aquatic environment and, as a result, the 

required one-time mitigation associated 

with establishing the baseline. The 

BMPs submitted with the maintenance 

baseline documentation do not preclude 

the Corps from requiring additional 

BMPs that might be necessary to ensure 

that the maintenance activity results in 

minimal adverse effects on the aquatic 

environment. Regarding mitigation 

approval, we believe the proposed text 

of this NWP clearly states that for this 

NWP, the district engineer will not 

delay necessary maintenance so long as 

the district engineer and permittee 

establish a schedule for identification, 

approval, development, construction 

and completion of any such required 

mitigation. It also states that work can 

begin before approval of the 

maintenance baseline in emergency 

situations. 

Two commenters opposed adding 

levees to the list of features that can be 

maintained through authorization by 

this NWP. One of these commenters 

believed that the change constitutes 

more than a wording change, because 

levees are large scale structures with 

impacts that require a thorough 

assessment. The other commenter stated 

that levees disrupt natural processes 

important to floodplains and habitat. 

They also noted that the presence of 

levees on a stream does not transform 

the stream into a flood control facility. 

While we agree that the construction 

of levees may require a thorough 

assessment of impacts on the watershed, 

the maintenance of existing levees is an 

activity that is appropriate for inclusion 

in this NWP since levees are often 

integral parts of flood control facilities. 

This NWP does not authorize the 

construction of levees. We believe that 

the limitations and general conditions 

associated with the NWP will ensure 

that authorized projects will have no 

more than minimal adverse effects. The 

requirement for an approved baseline 

and the ability to require mitigation 

provides a safeguard for valuable 

habitat. The Corps agrees that levees do 

not make a stream a flood control 

facility. However, levees are a flood 

control facility and this NWP should 

allow maintenance of the levees. In 

order for flood control activities to occur 

in the stream, they would have to be 

included in the maintenance baseline, 

as described in the text of the NWP. 

One commenter observed that the text 

of this NWP uses the phrase 

‘‘significantly reduced capacity’’ when 

discussing abandonment. They stated 

that Regulatory Guidance Letter 87–2 

discusses the ramification of using the 

word ‘‘significant’’ in Corps 

documentation and suggested that it be 

changed. Another commenter said that 

this NWP should not authorize actions 

that need to be taken because of neglect. 

We believe that the use of the word 

‘‘significantly’’ in this NWP is not 

contrary to the Regulatory Guidance 

Letter because it describes a level of 

reduction in flood capacity and does not 

relate to any determination of 

environmental impacts. If a flood 

control facility can be considered 

abandoned because of neglect, then the 

NWP would not authorize the work 

needed to reconstruct that facility. 

Another commenter requested that 

the fill associated with beaver dam 

control and maintenance be added to 

the list of features authorized by this 

NWP. While the Corps agrees that the 

maintenance of beaver dam control and 

maintenance structures may be 

authorized by this NWP, this NWP does 

not authorize fills associated with the 

construction of new structures. 

Two commenters opposed removing 

the last sentence in the first paragraph 

of this NWP (regarding types of 

maintenance activities that do not 

require section 404 permits) because 

they believe that the language clarified 

that vegetation maintenance does not 

require a section 404 permit. The Corps 

believes that this sentence is 

unnecessary, since Section 404 permits 

are only required for discharges of 

dredged or fill material, and, per the 

regulations at 33 CFR 323.2(d)(3)(ii), 

vegetation removal above the ground, 

that does not disturb the root system or 

include redeposition of excavated soil 

material, is not a discharge of dredged 

or fill material. 

One commenter stated that many 

existing flood control facilities may not 

have met the criterion (i.e., it was 

previously permitted by the Corps, it 

did not require a permit at the time it 

was constructed, or it was constructed 

by the Corps and transferred to a nonfederal sponsor), or the permittee cannot 

provide documentation that the 

criterion was met. Another commenter 

requested that this NWP authorize the 

maintenance of projects that were built 

by others but accepted as part of a 

federal flood control project or those 

that are authorized under state or local 

flood control laws. Both commenters 

requested that the Corps modify or 

eliminate the criterion listed in the first 

sentence of this paragraph and authorize 

maintenance of any flood control 

facility after approving the maintenance 

baseline and reviewing the activity 

through the pre-construction 

notification process. In addition, one 

commenter stated that the Corps should 


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not consider a flood control facility to 

be abandoned because vegetation has 

become established in the facility. That 

commenter also said that the NWP 

should compel agencies to perform 

maintenance more frequently by 

requiring mitigation for temporal losses 

in vegetation or habitat. Another 

commenter stated that agencies should 

be encouraged to reduce the frequency 

of maintenance where feasible by 

approving maintenance baselines that 

allow for less frequent maintenance. 

One commenter said that this NWP 

should also authorize temporary 

stockpiling as authorized by NWP 12. 

The criteria in the first sentence of 

this NWP cover all properly authorized 

flood control facilities. Unless a flood 

control facility was constructed as a 

result of a Corps Civil Works project, it 

would have required a Corps permit 

unless it was constructed in a manner 

that did not require Corps authorization 

or it was exempt from permit 

requirements. If it should have had 

Corps authorization but did not, we do 

not think it is appropriate to authorize 

maintenance under this NWP. The 

Corps will not generally require 

documentation of compliance with 

these criteria, unless there is reason to 

believe that these criteria are not met. 

We believe that the current text 

accurately describes how a site should 

be determined to be abandoned. The 

presence of vegetation does not 

necessarily indicate that a flood control 

facility has been abandoned. However, a 

site may be determined to be abandoned 

when vegetation has substantially 

diminished the capacity of the channel. 

We do not believe it is necessary to 

require permittees to conduct 

maintenance more frequently, to 

prevent the establishment of vegetation 

within the flood control facility. The 

one-time mitigation requirement is 

sufficient to offset the losses of aquatic 

resource functions and services that will 

occur as a result of keeping the facility 

within the maintenance baseline. 

Maintenance-related discharges that do 

not exceed the established maintenance 

baseline will not result in losses of 

aquatic resources beyond those 

addressed at the time the maintenance 

baseline is established. The frequency of 

maintenance will depend on the 

characteristics of the flood control 

facility and the surrounding area. Those 

flood control facilities that were 

constructed in more dynamic 

environments generally require more 

frequent maintenance. Because of the 

various environmental factors affecting 

the need for maintenance and the 

physical parameters that apply to an 

existing facility, it would be difficult to 

establish a maintenance baseline that 

lessens the frequency of maintenance. 

We do not believe it would be 

appropriate to modify this NWP to 

authorize temporary stockpiling of 

sediments and other materials in waters 

of the United States. Sediments and 

other materials removed during the 

maintenance of flood control facilities 

must be deposited at non-jurisdictional 

areas, unless the district engineer 

authorizes temporary stockpiling 

through a separate Department of the 

Army authorization. 

The previous commenter also 

remarked that the provisions for 

emergency situations still require that 

the permittee submit a pre-construction 

notification and wait for Corps approval 

before conducting any emergency work 

within the flood control facility. They 

stated that this requirement could 

compromise public health and safety, as 

it typically takes one or two days, 

minimum, to obtain the necessary 

approval to proceed. They requested 

deferral of the pre-construction 

notification requirement until after the 

emergency maintenance activities have 

been conducted. We believe that NWP 

31, as proposed, is a reasonable and 

prudent way to minimize the burdens 

imposed on permittees, within the 

constraints of applicable law and 

regulation. It is not appropriate to defer 

the submittal of a pre-construction 

notification, due to the fact that the 

Corps must determine if authorization 

by this NWP is applicable. The Corps 

has developed specific procedures for 

dealing with emergency situations. 

Entities responsible for maintaining 

flood control facilities should contact 

their local Corps office well in advance 

of the rainy season, to familiarize 

themselves with the available 

emergency processing procedures for 

that district. 

One commenter suggested that 

activities authorized by this NWP 

instead be authorized by NWP 3. We 

believe that the specific requirements of 

this NWP are necessary to ensure that 

impacts to the aquatic environment are 

minimal. Incorporating these 

requirements into NWP 3 would be 

confusing and make implementation of 

that NWP more difficult. 

Another commenter asserted that this 

NWP has the potential for more than 

minimal impacts, based on the fact that 

there are no limits on acreage or volume 

of discharges. The commenter also 

commented that one-time mitigation 

does not adequately ensure that aquatic 

functions will be restored, and that 

limiting mitigation to one-time will 

result in more than minimal adverse 

impacts if mature wildlife habitat is 

destroyed repeatedly. The Corps 

believes that activities authorized by 

NWP 31 that comply with the 

maintenance baseline provision do not 

result in more than minimal impacts, 

even without acreage limitations. The 

establishment of the maintenance 

baseline, in effect, identifies the location 

and physical dimensions of waters of 

the United States that have been 

incorporated in the flood control 

facility. Discharges that result in losses 

of these waters (i.e., that exceed the 

maintenance baseline) are not eligible 

for authorization under NWP 31. In light 

of this, we believe that the ‘‘one-time 

mitigation requirement’’ imposed in 

conjunction with the establishment of 

the maintenance baseline is sufficient 

for the purpose of this NWP. The intent 

of the one-time mitigation is to replace 

the aquatic functions that may be lost 

each time maintenance is performed. 

Once the mitigation is in place, any 

aquatic functions that develop between 

maintenance activities, are over and 

above the level of function that existed 

before the initial maintenance occurred. 

For areas or projects with specific 

issues, the division and district engineer 

may choose to add regional conditions 

or special conditions to the NWP 

authorization. 

One commenter made reference to a 

particular project containing salmonids 

and stated that an NWP should not have 

been issued for that particular project. 

The commenter objected to this NWP 

authorizing the continued maintenance 

of the project because the salmonid 

habitat may have partially recovered 

and would be repeatedly impacted. 

While we agree that this can occur, we 

do not agree that requiring mitigation 

over and over for what is, in effect, the 

same impact is appropriate. We believe 

that the limitations and general 

conditions included within this NWP 

will ensure that it will result in no more 

than minimal effects. The requirement 

for an approved baseline and the ability 

to require mitigation provides a way to 

safeguard valuable habitat. 

This NWP is reissued as proposed. 

NWP 32. Completed Enforcement 

Actions. We proposed to eliminate the 

phrase ‘‘For either (i), (ii), or (iii) 

above,’’ from the last paragraph of this 

NWP. In addition, we proposed to 

remove the phrase ‘‘or fails to complete 

the work by the specified completion 

date.’’

Two commenters suggested that the 

five-acre non-tidal water or one-acre 

tidal water limits be eliminated. They 

believe that if the NWP applied to 

enforcement actions with greater 

impacts, then the mitigation could be 

completed earlier which would reduce 


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temporal losses. One commenter said 

that the NWP should have a limit of two 

acres for wetland impacts, since the 

permit process, including the 

opportunity for public comment, has 

been avoided. One commenter stated 

that individual permits should be 

required for activities undertaken as a 

result of an enforcement action. They 

believe that greater oversight is 

appropriate for a party that broke the 

law. 

We believe that if the unauthorized 

activity impacts more than five acres of 

non-tidal waters or one acre of tidal 

waters that it may be more appropriate 

to either require an individual permit 

review or to pursue a judicial settlement 

or judgment. In cases where judicial 

settlements are pursued, there is usually 

a comprehensive evaluation of the 

environmental damage associated with 

the unauthorized work and substantial 

mitigation and penalties. In addition, 

we recognize that the limits for this 

NWP exceed the limits for the majority 

of the NWPs. We believe however, that 

the requirement that non-judicial 

settlements provide for environmental 

benefits equal to or greater than the 

environmental harm caused by the 

unauthorized activity ensures that the 

net impacts caused by the unauthorized 

work are no more than minimal. The 

thresholds limit the maximum size of 

the impact area and, wherever 

appropriate and practicable, restoration 

of this area will be required to undo the 

impacts. In any case, full compensation 

for the impacts in some form is 

required. 

One commenter requested we delete 

the sentence stating that the NWP does 

not apply to any activities occurring 

after the date of the court decision, 

decree or agreement that are not for the 

purpose of mitigation, restoration or 

environmental benefit. The commenter 

believes that this provision limits the 

ability of the Corps to enter into a 

settlement agreement. Another 

commenter requested that language be 

added to the NWP to expressly prohibit 

its use for any future impacts related to 

the existing project that is under the 

enforcement action. 

The Corps believes that the NWP as 

proposed is appropriate. Proposed 

additional project impacts (e.g., impacts 

necessary to complete the project that 

was initiated without a permit) must be 

evaluated under other NWPs, regional 

general permits, or individual permit 

review processes. This permit is 

intended only to authorize past 

discharges along with the required 

compensatory activities, not to 

substitute for applicable permit 

requirements for future activities. 

One commenter remarked that the 

activities authorized by this NWP do not 

correlate with the programmatic general 

permits in the commenter’s state. 

The Corps acknowledges this 

comment, however, we believe it is 

simply a statement and does not warrant 

any changes to the proposed NWP. 

This NWP is reissued as proposed. 

NWP 33. Temporary Construction, 

Access, and Dewatering. We proposed 

to divide the first sentence of this NWP 

into two sentences, to clarify that the 

NWP can be used to authorize 

temporary activities associated with 

both construction projects that do not 

otherwise require permits from the 

Corps or the U.S. Coast Guard, and 

those that do require and have obtained 

such permits. We also proposed to move 

the requirement for a restoration plan 

from the ‘‘pre-construction notification’’

general condition (general condition 13 

of the 2002 NWPs) to the ‘‘Notification’’

paragraph of this NWP, because it only 

applies to this NWP. We inadvertently 

used the term ‘‘mitigation plan’’ in the 

‘‘Notification’’ paragraph in the 

proposed NWP, and have changed it to 

‘‘restoration plan’’ in the final permit. 

The pre-construction notification must 

include a restoration plan showing how 

all temporary fills and structures will be 

removed and the area will be restored to 

pre-project conditions. The restoration 

plan should also describe reasonable 

measures for avoidance and 

minimization of adverse effects to 

aquatic resources. Please note that this 

restoration plan is different from the 

mitigation requirements in general 

condition 20 for permanent losses of 

waters of the United States. We 

proposed to remove the sentence that 

states that the district engineer will add 

special conditions to ensure minimal 

adverse effects, since the addition of 

special conditions where necessary to 

ensure minimal adverse effects is a 

condition of all NWPs. 

One commenter suggested that NWP 

33 should also be used to authorize 

temporary stockpiles and temporary fills 

that are related to construction 

activities. 

The Corps agrees that this work could 

potentially be authorized under NWP 33 

as long as all other conditions are met 

and the work is the minimum necessary 

to complete the project. However, the 

districts have discretion in determining 

if the work is the minimum necessary. 

One commenter expressed concern 

about the last statement in this NWP, 

which requires a Section 10 permit for 

structures left in place. The commenter 

indicated this statement is contradictory 

since any structures left in place would 

be permanent and would not qualify for 

the NWP 33 anyway. The commenter 

recommends removing or clarifying this 

statement. 

This statement is intended to reiterate 

that if any structures are left in place, 

separate authorization is required, 

however we have broadened it to cover 

all situations where structures left in 

place require separate Section 10 

authorization. 

Another commenter generally 

supported NWP 33 as proposed, but 

recommended changing the word 

‘‘conditions’’ to ‘‘contours’’ in the 

sentence stating ‘‘Following completion 

of construction, temporary fill must be 

entirely removed to upland areas, 

dredged material must be returned to its 

original location, and the affected areas 

must be restored to the pre-project 

conditions.’’ Several commenters 

indicated that requiring the area to be 

restored to pre-project conditions may 

not be beneficial when the pre-project 

conditions were degraded. One 

commenter suggested we require the 

affected areas be restored to the preproject conditions or to a condition with 

greater than pre-project habitat 

functions and services. Another 

commenter suggested saying that the 

area should be returned to appropriate 

pre-existing stable elevations and slope 

and restored with vegetation species 

matching the adjacent undisturbed 

areas, but consistent with the purposes 

of the associated project for which the 

temporary construction is necessary. 

We agree that returning a degraded 

area to better than pre-existing 

conditions is beneficial and we support 

this concept. We will not require the 

area to be restored to create better 

habitat functions and services, but we 

are not precluding this work from 

occurring. Removal of temporary fills is 

also addressed in general condition 13 

and the language in NWP 33 has been 

slightly modified to match this general 

condition. Any fill left in place will 

require separate authorization. 

One commenter questioned whether 

the restoration plan for temporary and 

permanent impacts could be included in 

a single plan, with any proposed 

mitigation, and whether the mitigation 

plan must be submitted concurrently 

with the pre-construction notification. 

Another commenter opposed the 

provision requiring that a restoration 

plan be included in the pre-construction 

notification that shows how the area 

will be restored to pre-project 

conditions. The commenter was 

concerned that a restoration plan is not 

always developed up front because a 

contractor is often not selected until 

after a permit has been issued. 


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The pre-construction notification 

must contain a restoration plan showing 

how all temporary fills and structures 

will be removed and the areas restored 

to pre-project conditions. The 

restoration plan must, at a minimum, 

include a general description of how 

restoration will be accomplished, with 

as much detail as is practicable when 

the pre-construction notification is 

submitted. We do not believe that 

selection of a contractor is necessary for 

the development of an appropriate 

restoration plan. 

Several commenters requested that we 

clarify or define some of the terms in 

NWP 33, such as cofferdam, access fill, 

and temporary structure. One of the 

commenters also asked if the Corps 

considers temporary construction pads 

to be a form of access that requires 

authorization. They also asked if 

cofferdam includes structures that only 

partially isolate a portion of the 

streambed but still allow water to pass. 

The Corps believes that cofferdam, 

access fill, and temporary structure are 

widely used and accepted terms. The 

Corps is hesitant to place strict 

definitions on these terms. The Corps 

does consider temporary construction 

pads to be a form of access that can be 

authorized under NWP 33 and we do 

consider a structure that partially blocks 

a portion of the streambed to be a 

cofferdam that could be authorized by 

NWP 33. 

One commenter suggested that 

notification should not be required for 

temporary impacts that last less than 24 

hours, when used with Best 

Management Practices. Another 

commenter requested we include a limit 

on the duration of impacts, such as 48 

hours. Another commenter requested 

that the Corps consider an exemption to 

the pre-construction notification 

requirement if the temporary fill is a 

mat instead of dirt, or a stabilized 

material, and it is in place for only a 

short time, such as 48 hours. This 

commenter also suggested that the 

Corps allow an exemption to the preconstruction notification requirement 

for minor amounts of temporary 

impacts. A commenter questioned 

whether a water-inflated cofferdam 

would be considered de minimus and be 

exempt from submitting a preconstruction notification. Several 

commenters recommended that a PCN 

should not be required for temporary 

construction access roads and other 

construction activities covered under 

NWP 33, unless the discharge causes the 

temporary loss of greater than 1⁄10 acre 

of waters of the United States. 

We have modified NWPs 3, 12, and 14 

to address concerns regarding preconstruction notification and temporary 

impacts to waters of the United States. 

In particular, we are not requiring 

separate authorization under NWP 33 

for temporary impacts associated with 

activities authorized under these three 

NWPs. Therefore, we are retaining the 

pre-construction notification 

requirements from the September 26, 

2006, proposal for NWP 33. We have 

modified the text of this NWP to require 

restoration of affected areas to preconstruction elevations, with 

revegetation, as appropriate, to be 

consistent with the changes to general 

condition 13, Removal of Temporary 

Fills. 

This NWP is reissued with the 

modification discussed above. 

NWP 34. Cranberry Production 

Activities. We proposed to rearrange the 

text of the NWP and to eliminate the 

phrase ‘‘provided the activity meets all 

of the following criteria’’. In addition, 

we proposed to eliminate the 

requirement for delineations of special 

aquatic sites from the text of the NWP, 

since this is a requirement of general 

condition 27. 

One commenter requested 

clarification of the last part of the last 

sentence which reads ‘‘. . .and the NWP 

would authorize that existing operation, 

provided the 10-acre limit is not 

exceeded.’’ Another commenter 

recommended reducing the acreage 

limit to 1⁄2 acre. This commenter also 

said that pre-construction notifications 

must clearly indicate areas to be 

impacted by the proposed activity. 

We believe that the text of this NWP 

is clear. This NWP only authorizes 

activities associated with existing 

cranberry production operations, such 

as expansion, reconfiguration or 

leveling. The NWP provides 

authorization for these types of 

activities, provided the total impacts to 

waters of the United States during the 

5-year term of the NWP do not exceed 

10 acres. It does not authorize the 

construction of new cranberry 

production operations. Since this NWP 

authorizes only existing cranberry 

production activities, the 10-acre limit 

is appropriate because these areas 

remain as wetlands, even though they 

are managed to improve cranberry 

production. General condition 27 

requires prospective permittees to 

submit delineations of waters of the 

United States with their preconstruction notifications, so that the 

impacts of the proposed activity can be 

assessed. 

Some commenters asserted that the 

activities authorized by this NWP will 

result in more than minimal adverse 

impacts, individually and cumulatively. 

These commenters also requested that 

the Corps not reissue this permit as it 

violates section 404(e) of the CWA and 

the section 404(b)(1) Guidelines. In 

addition, they remarked that it is 

unclear how the permittee would 

determine whether a net loss occurs. 

They were concerned that permittees 

would claim that converting a natural 

wetland to a cranberry bog does not 

result in a net loss of wetlands and as 

a result these losses would not be 

counted. In addition, one commenter 

remarked that the Corps should not rely 

on compensatory mitigation to offset the 

potential adverse impacts associated 

with conversion of wetlands to 

cranberry bogs. 

We believe that the activities 

authorized by this NWP will not have 

more than minimal impacts both 

individually and cumulatively. This 

NWP authorizes activities associated 

with the expansion, enhancement, or 

modification of existing cranberry 

operations. This NWP does not 

authorize new operations. Regarding the 

determination of net loss, this NWP 

requires pre-construction notification. 

The district engineer will determine if 

the proposed project would result in a 

net loss of wetland acreage, not the 

permittee. In making this determination, 

the Corps would consider conversion of 

natural wetlands to cranberry bogs a 

loss of waters. We believe the preconstruction notification requirement 

gives district engineers the ability to 

assess the impacts to aquatic resources 

and, if the acreage limit is exceeded or 

if otherwise warranted, exercise 

discretionary authority and require an 

individual permit. The individual 

permit process includes case-specific 

reviews to ensure compliance with the 

Section 404(b)(1) Guidelines. In 

addition, division and district engineers 

will condition such activities where 

necessary to ensure that these activities 

will have no more than minimal adverse 

effects on the aquatic environment, 

individually and cumulatively. The 

Corps believes that this NWP is fully in 

compliance with section 404(e) of the 

Clean Water Act. 

One commenter stated that the Corps’

limited cumulative effects data suggests 

a reduction in average impacts 

associated with this NWP. They added 

that this reduction appears to be due to 

cranberry production activities being 

authorized under state or regional 

general permits. 

We believe that the use of state 

programmatic and regional general 

permits to authorize cranberry 

operations are appropriate. All general 

permits must have no more than 

minimal adverse effect. Regional general 


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permits developed in consideration of 

local and regional issues have been 

determined to have minimal impacts 

both individually and cumulatively. As 

with the NWPs, regional general permits 

also enable the district engineer to 

exercise discretionary authority to 

require individual permit review, where 

appropriate. 

The NWP is reissued as proposed. 

NWP 35. Maintenance Dredging of 

Existing Basins. We proposed to change 

the phrase ‘‘disposed of’’ to ‘‘deposited 

at’’ in the text of this NWP. 

One commenter suggested the NWP 

be modified to allow disposal of 

dredged material (e.g., sand and gravel) 

in the littoral system. 

We believe the placement of dredged 

material at upland sites with the 

implementation of proper siltation 

controls helps to ensure minimal 

impacts on the aquatic environment, 

individually and cumulatively. We 

agree that beneficial use of dredged 

material, including placement of 

suitable material on beaches or in the 

littoral zone, can provide environmental 

benefits. However, such activities can 

result in unintended adverse 

environmental effects, and therefore 

require detailed and comprehensive 

analysis of sediment and littoral 

processes. We believe that an individual 

permit is the appropriate mechanism for 

authorizing this use of dredged material 

and that it should not be permitted 

under this NWP. 

Another commenter requested that we 

require pre-construction notification to 

help determine whether dredging 

activities authorized under this NWP 

may indirectly adversely impact 

adjacent beaches and near shore habitat. 

Generally, dredging of existing basins 

does not result in substantial adverse 

impacts to adjacent beaches and/or near 

shore habitat when proper siltation 

controls are used, as required by this 

NWP. We disagree that pre-construction 

notification is necessary for these 

dredging activities since division 

engineers have the ability to impose 

regional conditions, including the 

requirement for pre-construction 

notifications for certain activities, to 

ensure minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. 

One commenter remarked that we 

should provide clarification on the 

applicability of this NWP to existing 

access channels and mooring facilities. 

This NWP authorizes excavation and 

removal of accumulated sediment for 

maintenance of existing basins provided 

that the activity complies with its terms 

and conditions. 

This NWP is reissued as proposed. 

NWP 36. Boat Ramps. We proposed to 

modify this NWP to allow district 

engineers to waiver the 50 cubic yard 

limit for discharges of dredged or fill 

material into waters of the United States 

to construct a boat ramp. We also 

proposed to allow district engineers to 

waiver the 20 foot width limit for boat 

ramps. These waivers can be issued 

only if, after reviewing a preconstruction notification, the district 

engineer determines that adverse effects 

on the aquatic environment and other 

factors of the public interest will be 

minimal. 

Many commenters supported the 

discretion vested in district engineers to 

waive the limitations imposed by this 

NWP, however one commenter objected 

to the flexibility provided to the district 

engineers and suggested activities that 

exceed 50 cubic yards or 20 feet in 

width be evaluated under an individual 

permit process. Another commenter 

requested we include guidelines for 

when and to what degree the district 

engineer would apply waivers to the 50 

cubic yard fill limit and/or 20-foot 

width limit to avoid inconsistencies. 

We believe deference must be given to 

district engineers’ expertise and 

knowledge of the local aquatic 

environment, as well as his/her 

assessment of information submitted in 

pre-construction notifications, to make 

case-specific determinations on the 

effects to the aquatic environment. The 

proposed pre-construction notification 

requirement for discharges that exceed 

50 cubic yards or 20 feet in width will 

enable the district engineer to evaluate 

the direct, indirect and cumulative 

effects of a proposed activity to 

determine whether a waiver is 

appropriate or an individual permit is 

required. Because of the inherent 

variability across the nation, we 

disagree that it is necessary or 

appropriate to establish guidelines for 

the application of the waiver. We expect 

district engineers to formulate their 

case-specific determinations on the 

appropriateness of the waiver based on 

the unique characteristics of the local 

aquatic environment and in 

consideration of the specific 

circumstances of the proposed activity. 

One commenter noted that boat ramps 

are hardened surfaces that diminish 

near shore or bank habitat and asserted 

that pre-construction notification 

should be required along with 

mitigation. 

We believe that the discretion vested 

in district engineers to issue special 

conditions on a case-specific basis, 

including requirements for appropriate 

and practicable mitigation (see general 

condition 20), will ensure that losses to 

the aquatic environment are adequately 

offset. We also believe that the ability of 

division engineers to impose regional 

conditions for certain activities will 

ensure minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. 

Two commenters indicated that the 

case-by-case waiver of the 50 cubic yard 

and 20-foot width discharge limits 

should also require the Corps to 

coordinate with appropriate federal and 

state natural resource agencies. 

We disagree it is necessary to 

coordinate with federal and state natural 

resource agencies prior to the district 

engineer determining whether to grant a 

waiver for those activities that exceed 

the 50 cubic yard fill limit and/or 20- 

foot width limit. District engineers have 

the aquatic resources expertise to 

determine whether activities will result 

in more than minimal adverse effect on 

the aquatic environment. 

One commenter noted that activities 

authorized under this NWP do not 

require Department of the Army 

authorization in Section 404-only 

waters unless there is more than 

incidental fallback. 

Discharges in waters of the United 

States that are not otherwise exempt 

from regulation require Corps 

authorization. We acknowledge that the 

Corps does not regulate excavation 

under section 404 in instances when 

there is only incidental fallback. 

This NWP is reissued as proposed. 

NWP 37. Emergency Watershed 

Protection and Rehabilitation. We 

proposed to rearrange the text of this 

NWP to match the other permits. In the 

final permit, we have added two 

additional types of activity (reclamation 

of abandoned mine lands pursuant to 

Title IV of SMCRA and the Emergency 

Conservation Program administered by 

the Farm Service Agency) that may be 

authorized. 

One commenter supported the 

reissuance of this NWP without change, 

since they regularly partner with the 

Natural Resources Conservation Service 

on emergency projects. Another 

commenter expressed concerns that 

NWP 37 does not contain specific 

requirements for conducting repair work 

and it only includes generic references 

to environmentally defensible 

approaches. The commenter agreed that 

allowing the work to commence 

immediately (with follow-up permitting 

as necessary) may be desirable due to 

the urgency of some disaster responses; 

however, they indicated that the process 

may be prone to uncertainty about 

requirements and may cause more than 

minimal harm to the aquatic resources. 

The commenter indicated that activities 


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are funded by the Natural Resources 

Conservation Service but not always 

implemented by the agency, so people 

with limited experience may be 

completing the work. The commenter 

suggested that work should only be 

allowed to proceed prior to verification 

where a damage response team 

comprised of federal and state agencies 

have developed the site specific plans 

for damage repair. 

We believe that in some cases the 

urgency of the activities authorized by 

this NWP requires an expedited process. 

All activities require pre-construction 

notification, and as a general matter, the 

prospective permittee should wait until 

the district engineer issues an NWP 

verification before proceeding with the 

watershed protection and rehabilitation 

activity. A watershed protection and 

rehabilitation activity may proceed 

immediately only in those cases of true 

emergencies (i.e., where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur). Where practicable, 

permittees are encouraged to consult 

informally with the Corps before 

proceeding with emergency activities. In 

cases where emergency watershed 

protection and rehabilitation activities 

were conducted prior to receiving an 

NWP verification, the district engineer, 

after reviewing the pre-construction 

notification, may modify, suspend, or 

revoke the NWP authorization through 

the procedures at 33 CFR 330.5. All of 

the projects authorized by this permit 

are conducted under the sponsorship of 

another Federal resource management 

agency. Those agencies, not the Corps, 

have the responsibility to determine 

whether the project complies with their 

program authority. The Corps must 

determine the applicability of the NWP 

to the specific project, but for the most 

part, the Corps only reviews the 

proposed work to determine compliance 

with the requirements of the NWP and 

the general conditions. We believe that 

any specific concerns should be 

addressed through regional conditions 

or through consultation with the 

sponsoring agency. 

A couple of commenters 

recommended adding Title IV of the 

Surface Mining Control and 

Reclamation Act, which governs the 

abandoned mine land reclamation 

program, to proposed NWP E, Coal 

Remining Activities. One commenter 

suggested adding to NWP 37 work 

funded by the Farm Service Agency 

under its Emergency Conservation 

Program, which rehabilitates farmland 

damaged by natural disasters. 

As discussed below, we have revised 

proposed NWP E (now designated as 

NWP 49), to authorize abandoned 

mined land reclamation activities that 

also involve coal extraction activities. 

However, for those abandoned mine 

land reclamation activities that do not 

involve coal extraction, we believe it is 

more appropriate to authorize these 

activities under NWP 37, since they 

help protect and rehabilitate 

watersheds, and have revised the text of 

the NWP accordingly. In cases where it 

is necessary to conduct an emergency 

abandoned mine reclamation activity 

immediately, the project proponent may 

proceed with the work (see paragraph 

(d)(3) of general condition 27) while the 

district engineer reviews the preconstruction notification. For clarity, we 

have also added a new paragraph to this 

NWP that is consistent with paragraph 

(d)(3) of general condition 27. We have 

also added Emergency Conservation 

Program activities funded by the Farm 

Service Agency, which provides costshare assistance to eligible participants 

to rehabilitate farmland damaged by 

floods, hurricanes, or other natural 

disasters. The implementing regulations 

for the Emergency Conservation 

Program are found at 7 CFR part 701. 

The NWP is reissued, with the 

modifications discussed above. 

NWP 38. Cleanup of Hazardous and 

Toxic Waste. We proposed to modify 

this NWP by moving the requirement to 

submit a delineation of waters of the 

United States to paragraph (b)(4) of the 

‘‘pre-construction notification’’ general 

condition (GC 27). We also proposed to 

move the last sentence of this NWP to 

a ‘‘Note’’ at the end of the NWP. 

One commenter requested this NWP 

be revoked, because the cleanup of 

hazardous waste has the potential to 

cause adverse effects during and after 

the activities. The commenter indicated 

that remedial activities in navigable 

waters and wetlands need site-specific 

review, evaluation and permitting to 

ensure proper design, appropriate 

restoration, and long term stability. 

This NWP requires pre-construction 

notification to the Corps. We believe our 

review under this NWP is sufficient, 

since the activities authorized must be 

performed, ordered, or sponsored by a 

government agency with established 

legal or regulatory authority. 

Another commenter suggested the 

expansion of this NWP to allow removal 

of waste material, such as trash, debris, 

detritus, or rubble, in waters of the 

United States. The commenter suggested 

that the NWP should be modified to 

authorize the immediate removal of the 

waste and the notification to the Corps 

after the material has been removed. 

In general, the removal of waste 

material should not require Corps 

authorization, unless the activity 

involves discharges of dredged or fill 

material into waters of the United States 

and/or structures or work in navigable 

waters of the United States. Temporary 

access to remove the material may be 

authorized by NWP 33. Restoration of 

the affected area may be authorized 

under NWP 27. 

One commenter requested 

clarification regarding the applicability 

of NWP 38 for emergency response to an 

oil release in waters of the United States 

from electrical equipment that is not 

covered by a Spill Prevention, Control, 

and Countermeasure (SPCC). The 

releases are governed by EPA’s 

polychlorinated biphenyl spill response 

regulations (40 CFR part 761). Because 

the activities are not included in a SPCC 

Plan, they are not authorized by NWP 

20. The work that is required must be 

initiated within 24 or 48 hours of 

discovery of the release, so the 

commenter requested that either NWP 

20 be modified or the pre-construction 

notification requirement under NWP 38 

be removed in situations where the 

response time is critical. 

Instead of modifying this NWP, we 

have modified NWP 20 to include 

coverage of response to spills not 

covered by a SPCC Plan, but otherwise 

required to be initiated in a short time 

frame by another government agency, 

such as EPA’s polychlorinated biphenyl 

spill response regulations at 40 CFR part 

761. 

This NWP is reissued as proposed. 

NWP 39. Commercial and 

Institutional Developments. We 

proposed to modify this NWP by 

moving the provisions authorizing 

residential developments to NWP 29, 

requiring pre-construction notification 

for all activities authorized by this 

NWP, and applying the 300 linear foot 

limit to ephemeral streams. 

Three commenters objected to moving 

residential developments from NWP 39 

to NWP 29 because these developments 

are inconsistent with the original intent 

of NWP 29. Six commenters supported 

removing residential developments 

stating that the impacts associated with 

residential developments are not the 

same as commercial and institutional 

developments. Three commenters 

desired the ability to use multiple NWPs 

with NWP 39 for mixed-use 

developments, such as housing and 

commercial. One commenter did not 

support removing residential 

development from this NWP because 

mixed-use developments would lead to 

more than minimal impacts if multiple 

NWPs were used. 

As discussed in the preamble to the 

September 26, 2006, Federal Register 


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notice, the proposed changes effectively 

eliminates the previous NWP 29. We do 

not believe that NWP 39 will result in 

more than minimal individual and 

cumulative adverse effects, on the 

aquatic environment if it is used with 

other NWPs in accordance with general 

condition 24, Use of Multiple 

Nationwide Permits. 

Two commenters recommended 

allowing the NWP to be used in nontidal wetlands adjacent to tidal waters, 

while another agreed with the proposed 

language to exclude its use from these 

wetlands. One commenter declared that 

the NWP should not be used in 

wetlands accessible to anadromous fish 

or in difficult-to-replace aquatic 

environments. One commenter wanted 

the acreage limit increased to 5 acres 

and another recommended it be 

decreased to 1⁄4 acre so that it reflects 

the limits in the previous version of 

NWP 29. 

We believe that restricting the types of 

wetlands the NWP applies to is an 

appropriate method of assuring that 

minimal adverse impacts are not 

exceeded. Division engineers may 

regionally condition or revoke this NWP 

in certain areas or for certain activities 

if they believe the NWP would result in 

more than minimal impacts. Increasing 

the acreage limit to 5 acres would likely 

result in activities that will have more 

than minimal individual and 

cumulative adverse effects on the 

aquatic environment. Reducing the 

acreage limit to 1⁄4 acre would cause 

many projects that do have minimal 

adverse impacts to be evaluated under 

the individual permit process. 

Many commenters supported 

retaining the language requiring 

sufficient vegetated buffers to be 

maintained adjacent to all open water 

bodies, such as streams. One commenter 

requested an unspecified minimum 

vegetated buffer width while two 

commenters suggested a 200 foot 

setback from streams containing 

anadromous fish. One commenter 

supported removing of the buffer 

language and relying on paragraph (d) 

(now designated as paragraph (f)) of 

general condition 20. 

In general, the Corps agrees that 

buffers (i.e., riparian areas) are 

necessary to protect streams and other 

open waters. District engineers will 

make determinations regarding the need 

for and amount of required riparian 

areas in the context of general condition 

20, Mitigation. 

One commenter stated that including 

the expansion of commercial or 

institutional buildings will lead to 

piecemealing projects and result in 

more than minimal impacts on the 

aquatic environment. Five objected to 

removing language concerning 

avoidance and minimization to the 

maximum extent practicable. Two 

commenters suggested maintaining 

language requiring a conceptual 

mitigation plan. Several commenters 

recommended retaining the language 

concerning single and complete 

projects. Two commenters asserted that 

maintaining language addressing 

minimal change to flow and water 

quality was necessary. Two commenters 

objected to removal of language 

concerning minimizing on-site and offsite impacts, such as avoiding flooding 

of adjacent lands. Another commenter 

objected to removing ‘‘many’’ of the 

restrictions in the NWPs, including this 

one. One commenter suggested that 

problems will occur without the 

language about ‘‘single and complete 

projects.’’

We disagree with these comments. 

Requirements for avoidance and 

minimization, management of water 

flows, and water quality are provided in 

the NWP general conditions. Removal of 

language from the permit text itself does 

not affect the applicability of 

requirements contained in Corps 

regulations and in the NWP general 

conditions. We have repeatedly 

emphasized in this preamble that 

permittees must review the general 

conditions before using any NWP to 

ensure that they are meeting all 

requirements for its use. District 

engineers will review pre-construction 

notifications to ensure that all 

practicable on-site avoidance and 

minimization has been accomplished. In 

response to a pre-construction 

notification, the district engineer may 

require compensatory mitigation to 

ensure that the authorized activity 

results in minimal adverse 

environmental effects (see 33 CFR 

330.1(e)(3)). 

Several commenters objected to the 

mandatory pre-construction notification 

requirement and suggested a preconstruction notification threshold of 

1⁄10 acre or greater than 300 feet of 

stream loss. Some of these commenters 

reasoned that eliminating the 1⁄10 acre 

pre-construction notification threshold 

would be a disincentive to avoid the 

loss of waters of the United States. Two 

commenters supported the proposed 

pre-construction notification 

requirement. 

We disagree that the pre-construction 

notification threshold should be 1⁄10

acre. We acknowledge that this will 

result in an increase in the number of 

pre-construction notifications district 

engineers receive, however, we are 

proposing to simplify the information 

required in a pre-construction 

notification (see general condition 27) to 

reduce the paperwork burden on 

prospective permittees. Requiring 

notification for all activities authorized 

under NWP 39 will help ensure adverse 

minimal effects. 

Thirteen commenters wrote 

concerning impacts to streams and the 

use of waivers. See the discussion 

regarding this topic, above. 

One commenter stated that projects 

authorized by this NWP are not waterdependent and should not be permitted. 

We agree that most commercial and 

institutional developments are not water 

dependent activities. This does not 

mean that they cannot be permitted, 

only that they undergo an alternatives 

analysis (see the EPA’s 404(b)(1) 

Guidelines at 40 CFR part 230). 

Although analysis of off-site alternatives 

is not required for general permits, each 

proposed project is evaluated to 

determine whether avoidance and 

minimization has been accomplished on 

the project site to the maximum extent 

practicable (see general condition 20, 

Mitigation). In addition, the activity is 

not authorized under an NWP if the 

adverse impacts to waters of the United 

States are more than minimal. 

This NWP is reissued as proposed. 

NWP 40. Agricultural Activities. We 

proposed to modify this NWP to require 

pre-construction notification for all 

activities, authorize the construction of 

farm ponds in waters other than 

perennial streams, and remove certain 

restrictions on who could use the NWP. 

One commenter wanted to retain the 

paragraph numbering of the 2002 NWP. 

Another commenter said that this NWP 

should be limited to USDA program 

participants. 

The Corps believes the revised 

numbering system is appropriate and 

easy to understand. This NWP should 

not be limited to USDA program 

participants, since there are agricultural 

activities being conducted by nonparticipants that result in minimal 

adverse effects on the aquatic 

environment which are appropriately 

authorized by NWP. 

One commenter opposed reissuance 

of NWP 40 because of unacceptable 

impacts to wetlands. Two commenters 

did not support eliminating the 1⁄2 acre 

limit per farm tract on impacts to waters 

of the United States, and one 

commenter recommended reducing the 

acreage limit to 1⁄10 acre. One 

commenter expressed concern that 

removing farm tracts as the basis for the 

acreage limit would result in use of this 

NWP to authorize discharges of dredged 

or fill material for non-agricultural 

activities. One commenter stated that 


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roadside stands should not be 

considered farm buildings for 

authorization under this NWP. One 

commenter recommended retaining the 

1⁄10 acre threshold for pre-construction 

notification. One commenter stated that 

pre-construction notification should not 

be required for projects conducted 

under USDA programs. 

We believe the requirement for preconstruction notifications for all 

activities and the case-by-case review by 

district engineers will ensure that 

activities authorized by this NWP result 

in no more than minimal individual and 

cumulative adverse effects to the aquatic 

environment and other public interest 

review factors. The district engineer will 

add case specific conditions and require 

mitigation when needed to ensure 

impacts do not exceed the minimal 

level, and will assert discretionary 

authority to require an individual 

permit when impacts are more than 

minimal. Due to differences in program 

requirements between USDA programs 

and Section 404 of the Clean Water Act, 

it is not possible to ensure that activities 

conducted under USDA programs will 

necessarily comply with Section 404 

requirements and have minimal adverse 

impact to waters of the United States. 

Therefore, we are retaining the preconstruction notification requirement 

for USDA program participants and 

projects. We have removed the reference 

to ‘‘farm tracts’’ because we have found 

that it caused confusion in the past. The 

limit applies to each single and 

complete project (see definitions 

section). District engineers will 

determine during the pre-construction 

notification process whether the acreage 

limit is satisfied. Eliminating the use of 

farm tracts would not expand the use of 

this NWP to non-agricultural activities. 

The text of this NWP clearly states that 

it authorizes only agricultural activities. 

One commenter objected to 

authorizing farm ponds in wetlands and 

two objected to authorizing farm ponds 

in non-tidal waters excluding perennial 

streams. One commenter supported the 

use of NWP 40 for construction of farm 

ponds only in streams without aquatic 

life use designations. Another 

commenter said that the proposed 

modification was unnecessary, since 

many farm ponds are constructed 

outside of waters of the United States or 

they are exempt from section 404 permit 

requirements because of the exemption 

at Section 404(f)(1)(C) of the Clean 

Water Act. This commenter expressed 

concern that the proposed changes to 

NWP 40 would require landowners to 

submit pre-construction notifications for 

all farm ponds, even if they are not 

constructed in waters of the United 

States or they qualify for the section 

404(f) exemption. 

We are limiting the construction of 

farm ponds to certain types of waters 

where the adverse effects to the aquatic 

environment are likely to be minimal, 

individually and cumulatively. This 

NWP does not authorize the 

construction of farm ponds in perennial 

streams. Under this NWP, farm ponds 

may be constructed in non-tidal 

wetlands, intermittent streams, and 

ephemeral streams. Pre-construction 

notification is required for all activities 

authorized by this NWP, so that district 

engineers will have the opportunity to 

review each proposed activity to 

determine whether the adverse effects 

on the aquatic environment will be 

minimal. If the construction of a farm 

pond does not involve discharges of 

dredged or fill material into waters of 

the United States, or if it qualifies for a 

Section 404(f) exemption, the project 

proponent is not required to submit a 

pre-construction notification. This NWP 

authorizes the construction of farm 

ponds that involve discharges of 

dredged or fill material into waters of 

the United States and do not qualify for 

the Section 404(f)(1)(C) exemption, 

because of the recapture provision at 

Section 404(f)(2). We have added a 

sentence to the ‘‘Note’’ at the end of this 

NWP to clarify that this NWP is used to 

authorize the construction of farm 

ponds that are not exempt under 

Section 404(f). 

One commenter was concerned about 

negative impacts to salmonids from 

agriculture activities. Of main concern 

was placement of farm buildings in 

wetlands and streams, discharges from 

drainage tiles into farm ditches that 

were built in salmonid streams, and 

levee maintenance that degrades 

salmonid habitat and riparian areas. 

Potential adverse impacts from these 

activities will be addressed during the 

pre-construction notification review. 

Water quality issues are also addressed 

during Section 401 water quality 

certification or by a Clean Water Act 

Section 402 permit. 

Two commenters stated that the 

proposed permit will destroy wetland 

acres. One commenter stated that the 

loss of prairie potholes and western 

glaciated potholes will be staggering. 

Another commenter stated that 

discharges into playas, prairie potholes, 

and vernal pools should not be allowed 

under NWP 40. 

The 1⁄2-acre limit for this NWP applies 

to the loss of waters associated with 

activities authorized by this NWP. 

During the pre-construction notification 

review process, if the district engineer 

determines that adverse effects to 

aquatic resources are more than 

minimal, individually or cumulatively, 

he or she will impose special conditions 

to reduce the impacts to the minimal 

level or assert discretionary authority 

and require an individual permit. In 

addition, division engineers may add 

regional conditions to this NWP to 

restrict or prohibit its use in certain 

types of waters, if discharges into those 

waters for agricultural activities would 

result in more than minimal adverse 

effects on the aquatic environment. 

General condition 20, Mitigation, 

requires district engineers to determine 

appropriate and practicable mitigation 

necessary to ensure that impacts are no 

more than minimal. The Corps believes 

the pre-construction notification 

requirement for all activities and the 

case-by-case review by district engineers 

will ensure that activities authorized 

under this NWP will result in no more 

than minimal individual and 

cumulative adverse effects to the aquatic 

environment. The Corps notes that the 

acreage and linear foot limits in the 

NWPs apply only to waters that are 

jurisdictional under the Clean Water 

Act. 

One commenter stated that the Corps 

now proposes to ignore impacts to 

waters of the United States associated 

with agricultural dredge and fill 

activities that are deemed exempt under 

Section 404(f) of the Clean Water Act. 

This NWP authorizes certain 

agriculture activities that are not eligible 

for the exemptions under Section 404(f) 

of the Clean Water Act. Those 

agricultural activities that qualify for the 

Section 404(f) exemptions do not 

require a Section 404 permit. This has 

always been the case; it is not a change 

from current practice. 

One commenter stated that the 

possible waiver for the relocation of 

greater than 300 linear feet of existing 

serviceable drainage ditches constructed 

in intermittent and ephemeral streams 

would result in more than minimal 

adverse impacts. Another commenter 

said that the provision authorizing the 

relocation of existing serviceable 

drainage ditches constructed in nontidal streams should be conditioned to 

ensure that the activity does not result 

in a reduction in base flow to the 

stream. 

In response to a pre-construction 

notification for the proposed relocation 

of greater than 300 linear feet of existing 

serviceable drainage ditches constructed 

in intermittent or ephemeral streams, 

the activity is not authorized unless the 

district engineer issues a written waiver 

after determining that the activity will 

result in minimal adverse effects on the 

aquatic environment. The relocation of 


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drainage ditches must also comply with 

general condition 9, Management of 

Water Flows, to maintain the capacity of 

those waters to the maximum extent 

practicable. 

Several commenters stated that some 

language in the NWP was confusing or 

needed clarifying. This included the 

phrase ‘‘ditches constructed in waters of 

the United States’’, whether the permit 

applies to farm tracts or the entire farm, 

and the concept of ‘‘necessary for 

agriculture production’’. 

We have removed the definition of 

’’farm tract’’ and the conditions limiting 

the use of NWP 40 on a particular site, 

since district engineers will receive preconstruction notifications for all 

activities authorized by this NWP. 

District engineers will review preconstruction notifications for those 

NWPs to ensure that the proposed work 

results in minimal individual and 

cumulative adverse environmental 

effects. We believe that the other terms 

are self-explanatory. Determining 

whether an activity is necessary for 

agriculture production involves some 

discretion, which the district engineer 

will apply when evaluating preconstruction notifications for proposed 

projects. 

One commenter said that this NWP 

should not authorize the construction of 

livestock watering ponds unless the 

applicant submits documentation 

showing that he or she has obtained 

government assistance for the 

construction of the pond, and that no 

feasible alternatives are available that 

would avoid discharges into waters of 

the United States. This commenter 

supported the proposed prohibition 

against constructing farm ponds in 

perennial streams, but also 

recommended that the NWP prohibit 

the construction of farm ponds in 

oxbows or lakes. Another commenter 

stated that NWP 40 should authorize the 

construction of aquaculture ponds. 

We do not agree that it is necessary 

to require prospective permittees to 

obtain government assistance as a 

condition of authorization under this 

NWP. General condition 20, Mitigation, 

requires permittees to avoid and 

minimize adverse effects to waters of 

the United States to the maximum 

extent practicable on the project site. 

District engineers will also review preconstruction notifications to ensure 

compliance with the terms and 

conditions of this NWP, including 

general condition 20. If a farm pond is 

proposed to be constructed in an oxbow 

or a lake, the district engineer will 

review the pre-construction notification 

to determine if the activity will result in 

minimal adverse effects. In addition, 

division engineers may also regionally 

condition this NWP to restrict or 

prohibit its use to construct farm ponds 

in certain categories of non-tidal waters 

of the United States. We believe that 

construction of aquaculture ponds is a 

distinct activity that should not be 

authorized under this NWP because 

there may be unique issues associated 

with it (e.g., invasive species concerns, 

changes in water quality). Ponds 

constructed for purposes other than 

conventional agriculture may be 

authorized under other general permits 

or individual permits. 

This NWP is reissued as proposed. 

NWP 41. Reshaping Existing Drainage 

Ditches. We proposed to modify this 

NWP to clarify that it authorizes only 

the reshaping of drainage ditches 

constructed in waters of the United 

States where the purpose of reshaping 

the ditch is to improve water quality. As 

a result of this modification, we also 

proposed to remove the sentence that 

states why compensatory mitigation is 

not required for the activities authorized 

by this NWP. 

The purpose of this NWP is to 

encourage landowners who need to 

maintain drainage ditches constructed 

in waters of the United States to do so 

in a manner that benefits the aquatic 

environment. The maintenance of a 

drainage ditch is exempt under Section 

404(f)(1)(C) of the Clean Water Act, and 

does not require a section 404 permit. 

This exemption does not apply to the 

reshaping of existing drainage ditches, 

so landowners have a disincentive to 

reshape their ditches, even though such 

reshaping can be beneficial to the 

aquatic environment. This NWP 

authorizes those reshaping activities 

that benefit the aquatic environment. 

This NWP was first issued on March 

9, 2000, (65 FR 12818) to authorize, to 

the extent that a section 404 permit is 

required, the grading of the banks of a 

currently serviceable ditch to gentler 

(shallower) slopes than its current or 

original configuration. Reshaping a 

drainage ditch so that it has shallower 

side slopes can help improve water 

quality by decreasing the velocity of 

water flowing through the ditch and by 

spreading out water flow over a greater 

area of soil surface. It should also 

provide more area for plants to become 

established and grow within the ditch. 

These changes are likely to help 

improve water quality by increasing 

water contact with vegetation and soil 

microbes, which facilitates the removal 

of nutrients and other chemical 

compounds through biogeochemical 

processes. Slower water flow rates 

through the ditch should also decrease 

erosion, further improving water 

quality. 

We proposed to remove the 

prohibition against permanent 

sidecasting of excavated material into 

waters of the United States, where the 

excavated material results from the 

ditch reshaping activity. In cases where 

there are jurisdictional wetlands or 

other waters next to the ditch to be 

reshaped, this prohibition is likely to 

cause many landowners to maintain the 

ditch at its originally designed 

configuration to qualify for the 

exemption, since the 404(f)(1)(C) 

exemption allows discharges of dredged 

or fill material into waters of the United 

States resulting from ditch maintenance 

activities. 

Some commenters supported the 

modifications to this NWP because they 

encourage landowners to maintain 

drainage ditches in a manner that 

benefits the aquatic environment. 

Several commenters also agreed with 

the proposal to remove the prohibition 

against permanent sidecasting of 

excavated materials into waters of the 

United States. Several other commenters 

did not support allowing permanent 

sidecasting of material excavated from 

reshaped ditches. These commenters 

suggested that the sidecasting would 

have adverse impacts that exceed the 

water quality improvements. One 

commenter suggested we provide 

conditions on the sidecast material, 

such as requiring the fill to be no higher 

than 18 inches, so that the hydric soils 

will retain their hydric characteristics. 

They also suggested requiring random 

distribution of the material and that the 

sidecast should not interfere with 

surface water flows. Another commenter 

indicated that permanent sidecasting 

that isolates wetlands on-site, rendering 

them non-jurisdictional, should not be 

allowed. 

The exemption at 404(f)(1)(C) allows 

sidecasting, but prohibits reshaping 

drainage ditches. This NWP provides an 

incentive to improve water quality 

through reshaping the drainage ditches 

while still allowing sidecasting of the 

material. The Corps believes that 

allowing the sidecasting under this 

NWP will encourage landowners to 

reshape existing drainage ditches in 

favor of water quality improvements 

instead of conducting traditional 

maintenance activities. The Corps 

recognizes the need to ensure that the 

sidecasting has minor impacts on the 

aquatic environment and does not 

isolate wetlands. Regional conditions 

may be added to ensure that the 

individual and cumulative impacts are 

minimal. We note that the presence of 

a man-made berm between wetlands 


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and adjacent waters does not necessarily 

make the wetlands non-jurisdictional. 

Some commenters suggested that 

many drainage ditches are within what 

was a historical stream that has been 

straightened and many of these drainage 

ditches are used by anadromous 

salmonids as transport to upstream 

spawning grounds and for juvenile 

rearing. One commenter suggested this 

NWP should not be used in waterbodies 

bearing salmon where a state or federal 

watershed analysis or limiting factors 

analysis has determined that off-channel 

rearing habitat is limiting or potentially 

limiting to salmonid production. The 

commenters indicated that an 

individual permit should be required for 

work in ditches that are accessible to 

anadromous salmonids. The commenter 

suggested if this NWP is utilized in such 

waterbodies, a regional condition 

should require a delineation of pools 

and riffles and that reshaping be 

conducted in a manner that does not 

reduce volume and surface area of pools 

or other suitable low velocity habitat. 

The Corps agrees that these are 

important concerns but they only relate 

to certain areas. Division and district 

engineers will impose regional 

conditions or case-specific conditions, 

so that adverse effects to salmon species 

that utilize these drainage ditches are 

minimal, individually and 

cumulatively. 

One commenter suggested this NWP 

should allow for the restoration of 

ditches that lose their original shape, 

become vegetated, and obtain 

characteristics of wetlands due to long 

ditch maintenance cycles, which are 

often greater than 20 years. 

The Corps believes that this NWP may 

potentially be used in such areas in 

cases where the purpose of the work is 

to improve water quality. However, to 

be eligible to use this NWP, the drainage 

ditches must be currently serviceable 

and not so degraded that the area 

appears to have more the characteristics 

of a wetland than those of a drainage 

ditch. 

One commenter suggested this NWP 

should authorize reshaping of natural 

drainage features. The commenter 

indicated that reshaping unvegetated 

streambeds, channels, and watercourses 

with vertical banks subject to 

continuous erosion would provide 

flatter and vegetated side slopes, which 

would improve water quality. 

We do not agree that this NWP should 

be modified to authorize alterations to 

the geomorphology of natural streams 

and other waters of the United States. 

Such changes to natural waterbodies 

may result in more than minimal 

adverse effects to the aquatic 

environment. Other forms of 

Department of the Army authorization 

may be more appropriate to authorize 

this type of work. 

Another commenter indicated that the 

amount of change in reshaping is not 

specified. 

We do not believe it is necessary to 

place a limit on the cubic yards of 

change that can occur with this permit. 

We believe if the purpose is to reshape 

the ditch and improve water quality, an 

upper limit does not need to be 

specified. 

One commenter indicated that the 

term ‘‘* * * ditches constructed in 

waters of the United States’’ is 

confusing and suggested changing it to 

‘‘serviceable drainage ditches which 

were constructed in regulated wetlands 

or by channelizing waters of the United 

States.’’ Another commenter stated that 

the Corps has too narrowly defined 

what constitutes a drainage ditch. The 

commenter indicated that a large 

number of streams in the United States 

have had some channelization and some 

people refer to these water bodies as 

drainage ditches. The commenter is 

concerned that some natural 

waterbodies will be reshaped, which 

would actually reduce water quality. 

We believe the current phrasing is 

simple and concise, since jurisdictional 

wetlands are waters of the United 

States. This NWP is intended for 

currently serviceable drainage ditches 

and the applicability of the NWP can be 

determined on a case-by-case basis by 

the district engineers. This NWP does 

not authorize the channelization of 

existing streams and it does not 

authorize the relocation of those 

streams. In addition, this NWP does not 

authorize the reshaping of natural 

waterbodies. If a ditch has become 

incised, this NWP may potentially be 

used to reshape the ditch, thereby 

making it more stable. 

Another commenter is concerned 

about the lack of required 

documentation or demonstration of how 

the proposed reshaping will meet this 

basic condition of NWP eligibility. The 

commenter also questioned why the 

Corps does not define the term 

‘‘improving water quality’’ and does not 

explain how to evaluate a project that 

improves some aspects of water quality, 

but harms others. One commenter 

suggested a wording change to say, ‘‘for 

the purpose of stabilizing eroded banks’’

instead of ‘‘for the purpose of water 

quality.’’ The commenter indicated that 

saying the work is for the purpose of 

improving water quality is vague and 

subject to misinterpretation. 

The work authorized by this permit is 

designed to improve water quality by 

regrading the drainage ditch with 

gentler slopes, which can reduce 

erosion, increase growth of vegetation, 

and increase uptake of nutrients and 

other substances by vegetation. We have 

added this language to the NWP. More 

stable banks may result from these 

activities, but the primary objective of 

these projects is to improve water 

quality. We recognize that the 

environmental benefits of these 

activities usually need to be determined 

subjectively. 

A commenter was also concerned that 

the NWP does not require an applicant 

to prove the proposed ditch reshaping 

activity will not increase the area 

drained by the ditch. The commenter is 

concerned this NWP has a high 

potential for abuse and will attract 

landowners looking for authorization to 

make their ditches larger to drain 

wetlands more thoroughly and they 

suggest that the Corps will need to 

dedicate more resources to track and 

monitor the use of this permit. The 

commenter also indicated there must be 

a limit on the extent of impacts 

authorized under this permit and that 

extensive reshaping of drainage ditches 

should be subject to individual permit 

review. 

The Corps believes that the preconstruction notification requirement 

for this NWP will allow us to review 

larger-scale proposals and ensure that 

additional wetlands are not drained by 

the work. We have modified the text of 

this NWP, to prevent drainage of 

additional wetlands. We have replaced 

the phrase ‘‘original design capacity’’

with ‘‘original as-built capacity’’ to 

reflect the extent of drainage that 

occurred when the drainage ditches 

were originally constructed. We have 

also changed the word ‘‘designed’’ to 

‘‘constructed’’ in that sentence to ensure 

that the reshaping activity does not 

drain additional waters. We believe 

these changes will help prevent 

increases in the area drained by these 

ditches, especially in those cases where 

the ditch did not achieve its design 

capacity when it was originally 

constructed. 

A commenter recommended 

modifying the requirement that the 

capacity of the ditch must be the same 

as originally designed. The commenter 

is concerned that the only way for the 

capacity to remain the same is if the 

side slopes are increased is to narrow 

the bottom of the existing ditch. The 

commenter expressed concern about 

narrowing the bottom of the ditch and 

still having a stable system. The 

commenter suggested requiring the 

bottom width and depth of the ditch to 

be the same as originally designed. 


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We do not agree that this language 

should be changed, except to refer to the 

as-built capacity or the original 

construction of the ditch, for the reasons 

discussed above. The Corps believes 

that changing the language as 

recommended in the previous paragraph 

may unduly restrict the design criteria, 

because there may be some cases where 

the bottom width and depth would 

change, but the capacity would remain 

the same; therefore, we are keeping the 

current language. The important point is 

that this NWP may not be used to 

increase the capacity of the ditch. 

A commenter requested that some 

provisions be made to allow for an 

increase in capacity to accommodate 

increased drainage in the watershed. 

Due to increased runoff, ditches may 

have become incised and restoring 

stable slopes may require increased 

capacity. The commenter suggested not 

restricting the permit to original design 

capacity, since this does not allow for 

laying back the side slopes without 

decreasing maximum depth to avoid 

increasing cross sectional area. Another 

commenter indicated that there may be 

constricted conditions that do not allow 

for shallow side slopes and wanted to 

know if there would be flexibility in the 

use of NWP 41. 

Modifying this NWP to allow 

increased drainage capacity would be 

contrary to the intent of the NWP, 

which is to authorize changes in the 

ditch that help improve water quality. If 

the site characteristics do not support 

reshaping the ditch in a manner that 

improves water quality, without 

increasing drainage capacity, then this 

NWP cannot be used. Modifications of 

drainage ditches to accommodate 

changes in watershed hydrology or site 

limitations may be authorized by other 

types of Department of the Army 

permits. 

One commenter asked if the NWP 41 

would authorize the reshaping of 

existing drainage ditches that were not 

constructed in waters of the United 

States but now contain an ordinary high 

water mark or wetlands. 

This NWP may be used in currently 

serviceable drainage ditches to the 

extent that they are jurisdictional. 

Division or district engineers can make 

a determination on the applicability of 

this NWP on a case-by-case basis. 

A commenter was concerned about 

the prohibition against stream 

channelization activities. The 

commenter suggested that activities that 

modify the cross sectional configuration 

of drainage ditches could easily be 

interpreted as manipulation of a 

stream’s condition that causes more 

than minimal interruption of normal 

stream processes. The commenter 

encouraged the Corps to remove the 

channelization restriction from NWP 41. 

The intent of this NWP is to authorize 

the reshaping of ditches to provide more 

stable conditions, which will improve 

water quality. The Corps does not 

believe this permit should allow 

channelization of streams. 

Several commenters questioned why 

this NWP excludes non-tidal wetlands 

adjacent to tidal waters. The 

commenters asked why it matters 

whether currently serviceable drainage 

ditches were originally constructed in 

non-tidal wetland adjacent to tidal 

waters or in upland settings. 

We believe that excluding ditch 

reshaping activities in non-tidal 

wetlands adjacent to tidal waters is 

necessary to ensure that the adverse 

effects on the aquatic environment will 

be minimal, individually and 

cumulatively. Wetlands adjacent to tidal 

waters tend to have a high level of 

ecological and hydrologic connectivity 

with tidal waters. Ditch reshaping 

activities in these areas may have more 

than minimal adverse effects and can be 

better addressed by other general 

permits or individual permits. 

One commenter stated that this NWP 

should have a 500 linear foot limit and 

a 250-foot pre-construction notification 

threshold and that mitigation must be 

required for all adverse impacts to the 

aquatic environment authorized under 

this permit. Another commenter said 

that the activities authorized by this 

NWP would result in more than 

minimal adverse effects. 

The Corps believes that the preconstruction notification threshold is 

sufficient. Since we will see all 

proposals that are over 500 linear feet, 

we will have the opportunity to 

determine if the impacts are more than 

minimal. The Corps does not believe 

this NWP will cause a permanent loss 

of waters, since the work involves 

reshaping existing drainage ditches to 

improve water quality, therefore, 

mitigation is not required. 

Several commenters suggested that 

removing some of the language from the 

NWP 41 issued in 2002 made the permit 

less clear. One commenter suggested 

that the Corps add language stating 

indicating that this NWP is limited to 

reshaping activities that would restore 

more natural stream characteristics such 

as increasing the area of riparian 

vegetation through regrading or 

recreating stream meanders. 

The Corps believes that including this 

type of language would go beyond the 

intent of this NWP, which is to 

authorize the reshaping of existing 

drainage ditches that may not have ever 

contained meanders or other natural 

stream characteristics. 

Other commenters suggested putting 

the language from the 2002 NWP 41 

about compensatory mitigation back in 

the NWP. 

The Corps agrees and the following 

language has been placed in the final 

version of NWP 41: ‘‘Compensatory 

mitigation is not required because the 

work is designed to improve water 

quality.’’

This NWP is reissued with the 

modifications discussed above. 

NWP 42. Recreational Facilities. We 

proposed to modify this NWP by 

removing the language that limits its use 

to those recreational facilities that are 

integrated into the existing landscape 

and do not substantially change preconstruction grades or deviate from 

natural landscape contours. We also 

proposed to modify this NWP to require 

pre-construction notifications for all 

activities, and apply the 300 linear foot 

limit for losses of stream bed to 

ephemeral streams. In addition, we 

proposed to modify this NWP, to 

authorize the construction of ski areas, 

playing fields, and basketball and tennis 

courts. 

One commenter suggested that the 

Corps change the word ‘‘loss’’ to ‘‘fill’’

or ‘‘impact’’ (including temporary and 

permanent impacts). Another 

commenter suggested rewording a 

sentence to address the Rapanos and 

Carabell decisions. 

The Corps believes that the term 

‘‘loss’’ is the appropriate term. The term 

‘‘loss of waters of the United States’’ is 

defined in the ‘‘Definitions’’ section of 

the NWPs. Issues related to the 

jurisdictional reach of the CWA are not 

addressed in the NWPs or this 

preamble. Department of the Army 

Section 404 permits are required only 

for activities involving discharges of 

dredged or fill material into 

jurisdictional waters. 

Three commenters stated that the 

activities authorized by this NWP are 

not similar in nature, and will not result 

in minimal adverse effects to water 

quality and the aquatic environment. 

This NWP authorizes recreational 

facilities. The activities authorized by 

this NWP are all recreational facilities, 

which is a category of activity that is 

similar in nature. The pre-construction 

notification requirement gives district 

engineers the ability to assess the 

impacts to aquatic resources and, if 

warranted, exercise discretionary 

authority to add special conditions or 

require individual permits. Division and 

district engineers will condition such 

activities where necessary to ensure that 

these activities will have no more than 


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minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. 

Two commenters supported the 

removal of the limits on the types of 

recreational activities that can be 

authorized by this NWP. A number of 

commenters objected to allowing 

changes in preconstruction grades and 

deviations in natural landscape 

contours. Two commenters requested 

we prohibit the use of this NWP for golf 

courses, ski areas, playing fields, and 

basketball and tennis courts because 

these types of facilities are likely to alter 

natural landscape contours. One 

commenter stated that projects such as 

golf courses that require filling large 

valleys to create flatter areas, will 

change the hydrology of the area. One 

commenter requested that the Corps 

revoke this NWP or exclude golf 

courses, ski slopes, campgrounds and 

associated structures from this NWP. A 

couple of commenters suggested 

prohibiting the use of this NWP for 

habitat conversion, and the construction 

of buildings, stables and parking lots. 

Another commenter supported 

excluding hotels, racetracks, stadiums, 

and arenas from authorization by this 

NWP. A few commenters stated the 

proposed NWP encourages development 

of recreational facilities in wetlands, 

which creates maintenance problems, 

and they requested the NWP not be 

modified. 

The Corps believes that recreational 

facilities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment 

should be authorized by this NWP, 

regardless of the changes that might 

occur to pre-construction grades or 

natural landscape contours in areas not 

subject to section 404 jurisdiction. This 

is consistent with activities authorized 

by other NWPs, which do not restrict 

grading and landscape contouring in 

uplands. Because of the preconstruction notification requirement 

for this permit, the district engineer will 

have the opportunity to review 

proposed recreational facilities to 

determine if they will result in more 

than minimal individual and 

cumulative adverse effects. 

Six commenters objected to the 

proposal to allow district engineers to 

waive the 300 linear foot limit in 

ephemeral and intermittent streams. 

The district engineer will only waive 

the 300-linear foot limit in ephemeral 

and intermittent streams if he or she 

determines that the individual and 

cumulative adverse effects on the 

aquatic environment are minimal. Any 

waivers must be issued in writing from 

the district engineer. 

Two commenters requested that the 

NWP be clarified so that acreage limits 

are applied cumulatively for both the 

original construction and expansion. 

One commenter said that this NWP 

should not be used with NWPs 29 or 39, 

to authorize recreational facilities 

within residential, commercial, or 

institutional developments, and that the 

1⁄2 acre should apply to such projects. 

The NWPs authorize single and 

complete projects, as defined in the 

‘‘Definitions’’ section of the NWPs. The 1⁄2-acre limit associated with this NWP 

applies to a single and complete project. 

In any case, if the district engineer 

determines that the impacts of a 

proposed project are more than 

minimal, individually or cumulatively, 

he or she will assert discretionary 

authority and require an individual 

permit. It is not necessary to prohibit 

the use of NWP 42 with NWPs 29 or 39. 

Even though NWPs 29 and 39 may be 

used to authorize recreational facilities 

as attendant features of residential, 

commercial, or institutional 

developments, any use of NWP 42 with 

NWPs 29 or 39 would be limited by 

general condition 24, Use of Multiple 

Nationwide Permits. Under that general 

condition, the 1⁄2 acre limit would apply 

to such projects. 

Two commenters supported requiring 

pre-construction notification for all 

activities authorized by this NWP. In 

addition, they stated that the Corps 

should require documentation in the 

pre-construction notification that the 

facilities will result in unaltered surface 

and groundwater regimes and will not 

alter flow into open waters or streams. 

Another commenter supported retaining 

the 1⁄10 acre threshold for preconstruction notifications and 

eliminating it completely for projects 

conducted under USDA programs. The 

commenter believed requiring preconstruction notifications for all 

activities makes more work for both the 

public and the Corps. 

The Corps believes that preconstruction notifications are necessary 

to ensure that proposed activities will 

result in no more than minimal 

individual and cumulative adverse 

impacts. If the district engineer 

determines that the construction or 

expansion of recreational facilities will 

result in adverse effects on aquatic 

resources, including water regimes and 

flow, he or she can impose special 

conditions or require an individual 

permit. 

One commenter opposed the 

prohibition on use of this NWP in nontidal wetlands adjacent to tidal 

wetlands, stating that it is arbitrary. 

We believe that prohibiting the use of 

this NWP to authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters to 

construct or expand recreational 

facilities is necessary to ensure that the 

NWP authorizes only those activities 

that result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. Non-tidal 

wetlands adjacent to tidal waters 

warrant greater protection because of 

their interactions with those tidal waters 

and the functions and services they 

provide to coastal ecosystems. 

Construction activities resulting in 

discharges of dredged or fill material 

into those waters are more appropriately 

addressed through the individual permit 

process or regional general permits. 

One commenter stated that recreation 

facilities proposing impacts in streams 

accessible to anadromous salmonids 

should not be authorized by this NWP. 

Another commenter request that the 

Corps place regional conditions on this 

NWP such that it will not authorize the 

construction of trails or paths along the 

top bank of a stream unless there is no 

loss of riparian vegetation or the 

riparian vegetation can grow back. That 

commenter also suggested that this 

NWP should not be used with NWP 13, 

since activities authorized by these two 

NWPs may adversely affect the addition 

of woody material in stream channels. 

Division engineers can impose 

regional conditions on this NWP to 

address cumulative impacts, including 

impacts to salmon habitat. We do not 

agree that NWP 13 should be prohibited 

from being used with this NWP for a 

single and complete project. Bank 

stabilization may be required to 

maintain the integrity and safety of a 

recreational facility and to protect 

aquatic resources. 

One commenter stated that the preconstruction notification requirement is 

not enough to ensure minimal impacts 

and that the Corps position that adverse 

impacts will be offset by compensatory 

mitigation is unfounded. This 

commenter also opposed eliminating 

the requirement to submit avoidance 

and minimization statements and water 

quality management measures. 

The pre-construction notification 

requirement allows the Corps to 

evaluate recreational facilities on a caseby-case basis and determine if the 

project, as proposed, will result in more 

than minimal impact. The Corps 

believes that compensatory mitigation is 

an appropriate means of ensuring that 

adverse effects on the aquatic 

environment are minimal. The 

requirement to demonstrate avoidance 


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and minimization is part of general 

condition 20, Mitigation. 

One commenter said that this NWP 

should be conditioned to require the 

establishment and maintenance of 

buffers adjacent to all open waters, 

streams, and wetlands on the site, to 

prevent water quality degradation due 

to erosion and sedimentation, protect 

stream banks, provide wildlife habitat, 

and to enhance watershed functions and 

values. 

The establishment and maintenance 

of riparian areas next to streams and 

other open waters is addressed through 

the requirements of general condition 

20, Mitigation. Please see the preamble 

discussion for general condition 20, 

where we address comments concerning 

requirements and recommended widths 

for riparian areas. 

This NWP is reissued as proposed. 

NWP 43. Stormwater Management 

Facilities. We proposed to modify this 

NWP to require pre-construction 

notification for the construction or 

expansion of stormwater management 

facilities, but not for maintenance 

activities. We also proposed to modify 

the 300 linear foot limit for the loss of 

stream bed by applying that limit to 

ephemeral streams. We proposed to 

allow district engineers to waive the 300 

linear foot limit if the stream bed is 

intermittent or ephemeral and the filling 

and/or excavation of that stream bed 

will result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. In addition, we 

proposed to remove the requirement for 

prospective permittees to submit 

maintenance plans and the permit text 

requiring the submission of 

compensatory mitigation proposals with 

pre-construction notifications. 

One commenter suggested we refer to 

the definition of ‘‘stormwater 

management facilities’’ rather than 

furnish examples of the types of 

stormwater management facilities in the 

description of the NWP. 

The text of the proposed NWP 

describes the type and nature of 

activities that are authorized in various 

stormwater management facilities (e.g., 

construction, maintenance, excavation, 

installation), rather than defining what 

constitutes a stormwater management 

facility. Therefore, we do not agree that 

the language within the text of the NWP 

is redundant or superfluous. 

Several commenters requested we add 

restrictions to this NWP to exclude its 

use in special aquatic sites and/or 

prohibit construction of in-stream 

retention or detention basins and 

construction of hardened channels (e.g., 

concrete or riprap). 

We do not agree it is necessary to 

prohibit the construction of in-stream 

retention or detention basins and/or 

hardened channels since division 

engineers can impose regional 

conditions to this NWP to exclude 

certain types of activities in specific 

streams, watersheds, or other designated 

aquatic resources to ensure impacts to 

the aquatic environment are minimal, 

individually and cumulatively. In 

addition, since construction and 

expansion activities require preconstruction notification, the district 

engineer can either require case-specific 

special conditions or exercise 

discretionary authority to require an 

individual permit if the proposed 

activity, such as construction of instream basins and/or hardened 

channels, would result in more than 

minimal adverse impact on the aquatic 

environment. All new construction and 

expansion of existing facilities requires 

a pre-construction notification. 

Several commenters objected to the 

application of a 300 linear foot 

threshold for intermittent and 

ephemeral streams, while other 

commenters indicated the activities 

authorized under this NWP should 

apply exclusively to ephemeral streams 

and prohibit work in intermittent and 

perennial streams. One commenter 

stated that no stormwater management 

facilities should be constructed in 

waters of the United States. 

We agree that intermittent and 

ephemeral streams often provide 

important functions, services, and 

values, although there are situations 

where activities in these streams will 

result only in minimal adverse effects 

on the aquatic environment. In many 

cases, the only practicable alternatives 

involve constructing stormwater 

management facilities in waters of the 

United States. The pre-construction 

notification process allows district 

engineers to review proposed 

construction and expansion activities on 

a case-by-case basis to ensure that those 

activities result in minimal individual 

and cumulative adverse effects on the 

aquatic environment. 

In order for the 300 linear foot 

threshold for intermittent and 

ephemeral streams to be waived, the 

district engineer must make a written 

determination that the proposed work 

will result in no more than minimal 

adverse effects on the aquatic 

environment. If the district engineer 

does not provide written confirmation 

of the waiver, then the 300 linear foot 

limit remains in place and the 

prospective permittee must obtain 

another type of authorization for the 

proposed activity. As an added level of 

protection, division engineers can 

impose regional conditions to further 

restrict or prohibit the use of NWP 43 

in high value perennial, intermittent 

and ephemeral streams. Please note that 

this NWP prohibits discharges of 

dredged or fill material to construct new 

stormwater management facilities in 

perennial streams. 

Some commenters asserted that 

activities authorized under this NWP 

would result in adverse environmental 

impacts on spawning habitat or cause 

more than minimal adverse impacts to 

the aquatic environment if the 300 

linear foot limit is waived, and, as a 

result should be evaluated under the 

Corps individual permit process. 

In general, we believe the activities 

authorized under NWP 43 would result 

in minimal adverse impacts to the 

aquatic environment, including 

spawning habitat. Requiring individual 

permits for all activities that would 

otherwise qualify for authorization 

under NWP 43 based solely on the fact 

that they involve the loss of greater than 

300 linear feet of ephemeral or 

intermittent stream bed would place an 

unnecessary burden on the Corps and 

the permittee, with negligible added 

environmental benefits. District 

engineers will use their knowledge of 

the local aquatic environments and 

case-specific circumstances to 

determine when proposed activities 

would result in more than minimal 

adverse effects on the aquatic 

environment and consequently require 

an individual permit. In addition, 

general conditions 2 and 3 provide for 

the protection of aquatic life movement 

and spawning habitat, respectively, 

which collectively we believe will help 

to ensure overall minimal impacts. 

One of the commenters requested we 

establish criteria for the district 

engineer’s determination to waive the 

300 linear foot limit. One other 

commenter expressed concerns that in 

the absence of such guidelines there 

would be inconsistencies within the 

Corps as to how or to what degree the 

waiver is applied. 

We believe deference must be given to 

the district engineers’ expertise and 

knowledge of the local aquatic 

environment, as well as their 

assessment of information submitted in 

pre-construction notifications, to make 

case-specific determinations on the 

effects to the aquatic environment. 

Based on the inherent variability across 

the nation, we disagree that it is 

necessary or appropriate to establish 

nationally applicable criteria for the 

application of the waiver. Aquatic 

resource functions, services, and values 

differ across the United States and, 


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accordingly, there will be corresponding 

differences in the criteria considered for 

implementation of the waiver consistent 

with regional and/or local variations. 

District engineers will make their casespecific determinations on the 

appropriateness of the waiver based on 

the characteristics of the local aquatic 

environment and in consideration of the 

specific circumstances of the proposed 

activity. 

Some commenters suggested we 

combine this NWP with NWP 3, 

Maintenance, since both include 

maintenance activities. 

We believe the specific requirements 

of NWP 43 are necessary to allow for 

specific types of maintenance activities 

that may not be authorized by NWP 3. 

For example, NWP 43 authorizes 

activities necessary to return the storm 

water management facility to its original 

design capacities, which may include 

basins that are not considered structures 

or fills. In contrast, NWP 3 is limited to 

the repair, rehabilitation, or replacement 

of structures or fills, or the removal of 

accumulated sediments in the vicinity 

of existing structures. 

A few commenters requested we 

provide clarifications to NWP 43, 

including whether maintenance and 

mitigation plans for these facilities 

would be required. Several commenters 

requested we retain the requirement for 

submittal of maintenance plans for 

stormwater management facilities. Other 

commenters indicated the preconstruction notifications should 

include maintenance plans, avoidance 

and minimization measures, and water 

quality management measures. 

The removal of the requirement for 

prospective permittees to submit 

maintenance plans and compensatory 

mitigation plans with pre-construction 

notifications simplifies this NWP and 

eliminates redundancy with general 

condition 20, Mitigation. Maintenance 

plans are not necessary if maintenance 

does not increase the design capacity of 

the facility. For new construction or 

expansion of existing facilities, 

compensatory mitigation requirements 

are addressed in general condition 20, 

Mitigation. Division engineers also have 

the ability to impose regional conditions 

to ensure specific activities authorized 

under this NWP result in minimal 

adverse impacts on the aquatic 

environment. 

One commenter indicated 

maintenance of an existing stormwater 

management facility should not require 

Department of the Army authorization. 

We disagree with this comment. 

Unless an exempted activity, all work 

and/or actions that result in the 

discharge of dredged or fill material into 

waters of the United States require 

Department of the Army authorization. 

One commenter opposed the 

elimination of the 1⁄10 acre preconstruction notification threshold. 

We believe that pre-construction 

notification should be required for all 

new construction and expansion of 

existing facilities in order for the Corps 

to ensure that the individual and 

cumulative adverse environmental 

impacts associated with the project are 

minimal. 

One commenter indicated this NWP 

should not apply to specific watersheds, 

while another commenter insisted we 

not re-issue this NWP. 

We believe the stormwater 

management facilities authorized under 

NWP 43 often constitute vital 

development or improvement projects 

that serve important public functions, 

including protection of aquatic 

resources. While such activities may 

need to be located in waters of the 

United States, we believe the underlying 

provisions of the NWP program that 

require all authorized activities to have 

minimal impacts on the aquatic 

environment, coupled with the ability of 

division engineers to impose regional 

conditions on specific activities, will 

provide effective regulatory mechanisms 

for protecting the aquatic environment 

without adding further restrictions on 

the use of NWP 43. 

One commenter indicated the 

prohibition on use in non-tidal wetlands 

adjacent to tidal waters is an unfair 

limitation to prospective permittees in 

coastal plains. 

In consideration of the relatively high 

functions, services, and values these 

wetlands contribute to the overall health 

of the aquatic environment on a national 

basis, we do not agree that the 

prohibition on the use of NWP 43 in 

non-tidal wetlands adjacent to tidal 

waters is unfair to those perspective 

permittees located in coastal plains. 

More importantly, this prohibition is 

necessary to ensure that this NWP 

authorize only activities with minimal 

adverse effects, individually and 

cumulatively. 

We have slightly revised the wording 

of this NWP to clarify that activities 

which increase existing capacity may be 

authorized as ‘‘expansion’’ of existing 

facilities if pre-construction notification 

is submitted. 

This NWP is reissued as modified 

above. 

NWP 44. Mining Activities. We 

proposed to simplify this NWP and 

modify it to authorize all types of 

mining activities except for coal mining. 

Surface coal mining activities may be 

authorized by NWP 21. Other types of 

coal mining activities may be authorized 

by NWP 49 (Coal Remining Activities) 

or NWP 50 (Underground Coal Mining 

Activities). This NWP continues to 

authorize aggregate mining and hard 

rock/mineral mining activities. We 

proposed to retain the 1⁄2 acre limit for 

this NWP. 

A number of commenters supported 

reissuance of NWP 44, but opposed the 

1⁄2 acre limit, stating that it is arbitrary 

and duplicative of other existing 

regulatory requirements, or is too 

stringent for the permit to be useable. 

Several commenters expressed support 

for the 1⁄2-acre limit and recommended 

adding a linear foot limit for stream 

impacts. One commenter recommended 

a 1⁄4 acre limit for this NWP, to protect 

anadromous fish. One commenter 

recommended a 2,000 linear foot limit 

for impacts to streams. 

We believe that the terms and 

conditions of this NWP, including the 

1⁄2-acre limit, will ensure that activities 

authorized by this NWP result in no 

more than minimal adverse effects to 

the aquatic environment, individually 

and cumulatively. Aggregate and hard 

rock/mineral mining activities that do 

not qualify for authorization under this 

NWP can be authorized by individual 

permits. We believe the 1⁄2 acre limit is 

appropriate. We have modified the text 

of this NWP to clarify that the 1⁄2 acre 

limit applies to all non-tidal waters of 

the United States. This NWP only 

authorizes discharges of dredged or fill 

material into certain non-tidal waters of 

the United States. It does not authorize 

discharges into tidal waters, or non-tidal 

wetlands adjacent to tidal waters. As a 

pre-construction notification must be 

submitted for all activities, a specific 

linear foot threshold for streams is not 

necessary, as the district engineer can 

exercise discretionary authority or 

include special conditions to ensure 

that impacts to streams are no more than 

minimal. District or division engineers 

can condition this NWP on a case-bycase or regional basis to protect 

anadromous fish. 

One commenter stated that ephemeral 

streams, isolated waters, and artificially 

created wetlands should not be 

considered in the acreage limitations. 

The acreage limit for this NWP 

applies to waters of the United States. 

Impacts to non-jurisdictional waters are 

not considered as losses of waters of the 

United States, and are not counted 

towards the acreage limit for this NWP. 

A couple of commenters stated that 

the reclamation plan should not be 

required as part of the pre-construction 

notification. Pre-construction 

notifications are frequently submitted to 

the Corps before reclamation plans are 


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required and the Corps has no authority 

over mining reclamation. 

The Corps needs to review the 

reclamation plan to ensure that the 

authorized activities, including any 

required reclamation, do not result in 

more than minimal adverse 

environmental impact. In addition, 

reclamation activities may affect the 

need to require compensatory 

mitigation. 

Several commenters opposed the 

removal of the prohibition on using 

NWP 44 in 100-year floodplains, while 

one commenter stated that certain 

mining activities will increase the flood 

storage capacity of floodplains and 

streams and thereby reduce flooding, 

which would benefit local communities. 

In accordance with general condition 

10, permittees must comply with 

applicable state or local floodplain 

management requirements that have 

been approved by the Federal 

Emergency Management Agency. In 

addition, the Corps will address impacts 

to 100-year floodplains through the 

case-by-case review that occurs through 

the pre-construction notification 

process. 

Several commenters supported the 

simplification of NWP 44 by eliminating 

redundant terms and conditions. One 

commenter questioned whether the 

permittee could mine the same area over 

and over for aggregates as new deposits 

accumulate each year. This commenter 

also asked whether there is a limit on 

the number of times or locations that the 

permit can be used by one mining 

company, what kind of separation is 

necessary between mining sites, and 

whether this NWP can be used by one 

mining company on multiple streams. 

This NWP can be used for any single 

and complete mining activity that has 

independent utility. The definitions of 

‘‘single and complete project’’ and 

‘‘independent utility’’ are provided in 

the ‘‘Definitions’’ section. Therefore, it 

is possible for an applicant to use this 

NWP each year or on multiple sites, 

provided each activity is a single and 

complete project that complies with the 

terms and conditions of the NWP, 

including the requirement that the 

individual and cumulative adverse 

environmental impacts are minimal. In 

response to pre-construction 

notifications, district engineers will 

determine whether proposed mining 

activities constitute separate single and 

complete projects that qualify for NWP 

authorization. 

A number of commenters were 

opposed to the reissuance of NWP 44 

because they believe the environmental 

impacts associated with the permit are 

more than minimal, and could result in 

significant adverse effects to rivers and 

streams, including those with important 

fish and mussel species. One 

commenter stated that this NWP does 

not satisfy the ‘‘similar in nature’’

requirement for general permits. One 

commenter recommended that the 

Corps establish an activity-specific NWP 

for the aggregates industry. One 

commenter recommended excluding 

peat mining and in-stream gravel 

mining, due to the environmental 

damage produced by these types of 

mining. 

This NWP authorizes mining 

activities that have no more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. The terms and conditions 

of this NWP, including the NWP general 

conditions, will ensure that these 

mining activities will have no more than 

minimal adverse environmental effects. 

All activities authorized by this NWP 

require pre-construction notification to 

the district engineer prior to 

commencement of mining activities. 

The pre-construction notification 

process allows district engineers to 

review mining activities on a case-bycase basis, to ensure that the proposed 

work has no more than minimal adverse 

effects on the aquatic environment. The 

district engineer can add special 

conditions to the NWP authorization to 

ensure that any adverse effects on the 

aquatic environment are no more than 

minimal, or exercise discretionary 

authority to require an individual 

permit for the work. This NWP complies 

with the ‘‘similar in nature’’

requirement of general permits because 

it authorizes a specific category of 

activities (i.e., mining activities, except 

for coal mining activities). 

One commenter recommended that 

the NWP be revoked in Montana 

because these activities would have 

more than minimal adverse 

environmental effects. One commenter 

also stated that the permit is not 

adequately coordinated with state and 

federal resource agencies and eliminates 

the public interest review. 

Division engineers may add regional 

conditions to this NWP to enhance 

protection of the aquatic environment 

and address local concerns. Division 

engineers can also revoke this NWP in 

a specific geographic area if the use of 

that NWP would result in more than 

minimal adverse effects on the aquatic 

environment, especially in high value or 

unique wetlands and other waters. 

This NWP is reissued with the 

modification discussed above. 

NWP 45. Repair of Uplands Damaged 

by Discrete Events. This was proposed 

as NWP A. We proposed to remove 

paragraph (iii) and portions of 

paragraph (i) from NWP 3 to this new 

NWP, to authorize emergency repair 

activities. This was intended to simplify 

NWP 3 and limit that NWP to routine 

maintenance activities. 

Numerous commenters supported the 

issuance of this new NWP. 

The majority of the comments 

received in response to the proposed 

NWP involved general concerns 

regarding the way in which this permit 

could affect time critical responses for 

emergency situations. Many 

commenters stated that authorization of 

the repair, rehabilitation, or replacement 

of structures or fills destroyed or 

damaged by storms or other discrete 

events should remain in NWP 3, since 

NWP 3 did not require pre-construction 

notification for those activities. 

Therefore, NWP 3 would allow 

expeditious maintenance activities, 

especially for infrastructure and other 

important features. 

We agree, and have returned the 

language to NWP 3 that authorizes the 

repair, rehabilitation, or replacement of 

structures or fills destroyed or damaged 

by storms or other discrete events. We 

wish to clarify that this NWP is not 

intended to serve as an emergency 

permit. An ‘‘emergency’’ is a situation 

which would result in an unacceptable 

hazard to life, a significant loss of 

property, or an immediate, unforeseen, 

and significant economic hardship if 

corrective action is not undertaken 

within a time period that does not allow 

the Corps to process the application 

under standard procedures. As many 

commenters pointed out, pursuant to 33 

CFR 325.2(e)(4), the Corps has already 

developed special permitting and 

permit application processing 

procedures for emergency situations, 

which are applicable to all types of DA 

permits. Further, as several commenters 

indicated, in accordance with 33 CFR 

323.4(a)(2), certain emergency response 

activities are exempted from the 

permitting requirements of Section 404 

of the Clean Water Act. As a result of 

the changes discussed above, this NWP 

authorizes only the restoration of 

upland areas damaged by storms, floods, 

or other discrete events. Those repairs 

may or may not require emergency 

processing, though in most cases we 

believe they will not. We believe that 

the confusion regarding the purpose of 

this NWP was caused by the inclusion 

of the word ‘‘Emergency’’ in its name. 

In order to remove that confusion, we 

are renaming this NWP ‘‘Repair of 

Uplands Damaged by Discrete Events.’’

Several commenters expressed 

concerns over the lack of clear limits for 

this NWP, and recommended 


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establishing acreage or linear-foot limits 

in order to prevent more than minimal 

impacts to the aquatic environment. On 

the other hand, several commenters 

suggested establishing thresholds that 

would require pre-construction 

notification only for large-scale 

activities. One commenter asked how 

‘‘pre-event’’ bottom contours of 

waterbodies would be determined, 

particularly on those sites with limited 

or no data, aerial photos, or other 

information. 

This NWP only authorizes the 

restoration of damaged uplands to the 

extent that existed before the damage 

occurred, along with any bank 

stabilization necessary to protect the 

restored uplands. This NWP may also 

authorize minor dredging where 

necessary to restore material that has 

washed from the uplands into a 

neighboring waterbody. Since this NWP 

only authorizes activities to restore 

damaged areas to previously existing 

conditions, we do not believe that it will 

result in adverse effects that did not 

previously exist. We believe that the 

pre-construction notification 

requirements established for this NWP 

are necessary to ensure that the 

proposed activities will result in no 

more than minimal adverse effects. We 

recognize that the pre-construction 

notification requirement imposes an 

additional burden on project 

proponents, but we do not believe that 

it is inequitable or, in most 

circumstances, substantial. The district 

engineer has discretionary authority to 

require an individual permit for any 

proposed activity that will have more 

than minimal individual or cumulative 

adverse effects on the environment, and 

the pre-construction notification 

requirement is necessary for the 

effective use of this authority. When 

reviewing pre-construction 

notifications, district engineers will use 

available information, including 

documentation provided by permit 

applicants in accordance with the 

‘‘Notification’’ provision of this NWP, to 

determine the pre-existing conditions. If 

maps or photographs are not available, 

the district engineer’s judgment will be 

used. 

One commenter stated that this NWP 

could interfere with tribal rights, 

including treaty fishing access, and that 

it could severely impact anadromous 

salmonid habitat. 

District engineers can impose special 

conditions or assert discretionary 

authority and require an individual 

permit for projects that have more than 

minimal adverse effect on the aquatic 

environment or other public interest 

factors. Furthermore, activities 

authorized under this NWP must 

comply with the NWP general 

conditions, including general condition 

16, Tribal Rights, and general condition 

2, Aquatic Life Movements. 

One commenter requested 

clarification regarding the effects of 

changes in the ordinary high water mark 

after discrete storm or flood events on 

the scope of activities authorized under 

this NWP. 

Discrete storm or flood events may 

result in erosion, which can change the 

ordinary high water mark (OHWM) in 

non-tidal waters or high tide line (HTL) 

in tidal waters. For the purposes of this 

NWP, determinations regarding the 

location of the OHWM or HTL will be 

made by the district engineer upon 

receipt of the pre-construction 

notification. 

One commenter stated that this NWP 

is unnecessary since repair activities 

that do not exceed the original scope of 

the project should be covered by the 

original authorization. One commenter 

stated that the Corps should not allow 

rebuilding of structures located in 

floodplains which are likely to be 

damaged again by subsequent storm 

events. 

This NWP authorizes the restoration 

of uplands damaged by a discrete event, 

in cases where there is no available 

authorization to restore those areas. 

There would be no original 

authorization for natural uplands that 

were damaged by a discrete event. Manmade uplands may have been 

constructed without the need to obtain 

a Department of the Army permit. 

Activities authorized by NWP must 

comply with general condition 10, Fills 

within 100-year Floodplains, which 

requires all NWP activities to comply 

with any applicable FEMA-approved 

state or local floodplain management 

requirements. We do not agree that there 

should be a prohibition against 

rebuilding structures in floodplains. 

Such decisions should be made by the 

appropriate state or local authorities, in 

accordance with FEMA-approved 

floodplain management requirements. 

A number of commenters stated that 

the terms of the NWP were 

contradictory with regards to the start 

date of the authorized activity. These 

commenters requested clarification as to 

whether the work must commence 

within two years from the date of the 

damages or from the date the preconstruction notification is filed. 

We have modified the text of this 

NWP to clarify that activities authorized 

by this permit must commence, or be 

under contract to commence, within 

two years of the date of damage. This 

change will make the second paragraph 

of this NWP consistent with the preconstruction notification requirements 

for this NWP. This requirement may be 

waived by the district engineer if the 

permittee can show that delays were 

unavoidable. 

One commenter indicated that this 

NWP should also authorize temporary 

impacts that are necessary to repair or 

provide maintenance to damaged 

structures. 

This NWP does not authorize 

temporary fills, structures, or work 

required to conduct the upland 

restoration activities. Those temporary 

activities may be authorized by NWP 33. 

Proposed NWP A is issued as NWP 

45, with the modifications discussed 

above. 

NWP 46. Discharges in Ditches. This 

NWP was proposed as NWP B to 

authorize discharges of dredged or fill 

material into certain types of ditches 

and canals. This NWP allows a 

landowner to return his or her land to 

its prior condition, but only in those 

cases where the ditches or canals meet 

all four criteria specified in the NWP. 

To qualify for this NWP, those ditches 

and canals must: (1) Be constructed in 

uplands, (2) receive water from another 

water of the United States, (3) divert 

water to another water of the United 

States, and (4) be determined to be 

waters of the United States. These four 

criteria will limit the use of this NWP 

to those ditches and canals that 

generally provide few aquatic resource 

functions. This proposed NWP does not 

authorize discharges of dredged or fill 

material into ditches or canals that were 

constructed in waters of the United 

States, such as streams. 

Several commenters supported the 

new NWP. Several commenters stated 

that the limits for this NWP are too high 

to prevent more than minimal impacts 

on the aquatic ecosystem, particularly to 

flood storage and water quality. Several 

commenters recommended establishing 

a 300 linear foot threshold for preconstruction notification and a 1⁄2 acre 

limit on permitted impacts, in order to 

be consistent with other NWPs. Another 

commenter stated that filling ditches 

should not be allowed without an 

assessment of how the hydrology was 

altered when the ditch was created and 

how the hydrology and water quality 

would be affected if it is filled. Another 

commenter recommended requiring preconstruction notification for all 

activities under this NWP, because 

authorized activities could result in 

isolating wetlands that are adjacent to 

the ditches and severing the migratory 

pathways of aquatic organisms. On the 

other hand, one commenter stated that 

since the ditches regulated by this 


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permit have been determined to provide 

few aquatic resource functions, the 

thresholds for pre-construction 

notification and limits for permitted 

impacts should be increased. Similarly, 

one commenter suggested that this NWP 

should not have any limits, because the 

regulated ditches are not natural. 

This NWP authorizes discharges of 

dredged or fill material into certain 

types of ditches. Those ditches must 

meet all of the criteria listed in the first 

paragraph of the NWP. To ensure that 

this NWP is used only to authorize 

discharges into those types of ditches, 

and to ensure that those activities result 

in minimal adverse effects on the 

aquatic environment, we are requiring 

pre-construction notification for all 

activities. To address concerns 

regarding the jurisdictional status of the 

waters of the United States other than 

the ditch to be filled, we have changed 

the text of this NWP to state that those 

other waters had to have been waters of 

the United States prior to the 

construction of the ditch. Therefore, the 

jurisdictional status of those waters 

should remain unchanged after the 

ditch is filled. 

We are retaining the proposed one 

acre limit for this NWP. We believe that 

the applicable provisions and terms and 

conditions, including the general 

conditions, the pre-construction 

notification requirements, and the 

ability of division and district engineers 

to assert discretionary authority and 

impose regional and case-specific 

conditions on this NWP, will ensure 

that the activities authorized will result 

in no more than minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

One commenter stated that a 

determination of absence or presence of 

salmonids should be required in 

channels potentially accessible by 

anadromous salmonids. Another 

commenter said that this NWP should 

not authorize discharges of dredged or 

fill material into streams. 

Potential impacts to salmon species 

will be considered by district engineers 

during the review of pre-construction 

notifications. General condition 2, 

Aquatic Life Movements, prohibits 

activities which could disrupt the 

necessary life cycle movements of 

aquatic species. If deemed appropriated, 

this NWP can be regionally conditioned 

by division engineers to limit or restrict 

the use of this NWP in waters accessible 

to anadromous salmonid species. The 

text of this NWP clearly states that it 

does not authorize discharges into 

streams, or streams that have been 

relocated into uplands. 

Several commenters stated that the 

proposed NWP is contrary to Section 

404(e) of the Clean Water Act because 

it is not a general permit for a category 

of activities that are similar in nature 

but rather a permit for a category of 

waters, and that the Corps has no 

authority to issue a permit for a category 

of waters. One commenter suggested 

that the Corps clarify that the NWP is 

not limited to situations where the 

landowner seeks to return his or her 

land to its prior condition. One 

commenter requested clarification on 

whether impacts to roadside ditches for 

road improvements can be permitted 

under this NWP, or if NWP 14 would be 

applicable. Similarly, another 

commenter suggested that fill for access 

roads should be included in this NWP. 

We expect that this NWP will be 

mostly used by landowners to return 

ditches or portions of ditches to their 

prior upland condition. However, this 

NWP may also authorize ditch 

relocation and reshaping activities. To 

help ensure that this NWP only 

authorizes activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment, we 

have added language stating that this 

NWP does not authorize discharges of 

dredged or fill material that will 

increase the drainage capacity of the 

ditch and will drain other waters of the 

United States. In the event that the ditch 

is returned to its prior upland condition, 

the Corps would no longer have 

regulatory jurisdiction over that ditch. 

This NWP may authorize discharges of 

dredged or fill material into roadside 

ditches, provided those ditches meet all 

four criteria specified in the first 

paragraph of this NWP. Access roads 

may be authorized by other NWPs, 

regional general permits, or individual 

permits. 

One commenter requested 

clarification as to whether all four or 

only one of the four eligibility criteria 

are needed for a project to be authorized 

under this NWP. The same commenter 

requested clarification on the eligibility 

criterion ‘‘receive water from another 

waters of the United States.’’ One 

commenter asked whether this NWP 

could be used to authorize discharges of 

dredged or fill material into both tidal 

and non-tidal waters of the United 

States. One commenter said that this 

NWP should not authorize discharges 

into canals, because canals can be large 

aquatic systems and the adverse 

environmental effects could be more 

than minimal. 

This NWP applies only to those 

ditches that meet all four criteria 

specified in the first paragraph of the 

NWP. The second criterion for eligible 

ditches refers to situations where the 

ditch constructed in uplands receives 

surface water flow from another water of 

the United States that existed prior to 

the construction of that upland ditch. 

To ensure that this NWP authorizes 

only those activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment, we 

have limited this NWP to discharges of 

dredged or fill material into non-tidal 

ditches. In addition, it does not 

authorize discharges of dredged or fill 

material into navigable waters of the 

United States (i.e., section 10 waters). 

We have removed the word ‘‘canal’’

from this NWP, to provide further 

clarity since canals may be navigable 

waters of the United States. Discharges 

into a non-tidal ditch that flows into a 

tidal water could be covered under 

NWP 46, but not discharges into a 

‘‘tidal’’ ditch, i.e., one into which tidal 

waters flow. 

A number of commenters questioned 

or requested clarification of Corps 

jurisdiction over ditches following the 

Supreme Court decisions in Rapanos 

and Carabell. One commenter requested 

clarification on whether the term ‘‘water 

of the United States’’ includes wetlands 

or only waterbodies, and whether a 

ditch connecting two wetlands would 

qualify for authorization under this 

NWP. One commenter suggested 

providing guidelines for or examples of 

the information required to determine 

that a ditch was constructed in uplands. 

This NWP can be used to authorize 

discharges of dredged or fill material 

into ditches that meet the four criteria 

in the first paragraph, as well as the 

other terms and conditions of this NWP. 

The waters of the United States other 

than the ditch constructed in uplands 

may consist of wetlands, open waters, or 

both. This preamble does not address 

the limits of jurisdiction after Rapanos 

and Carabell. 

Data used to determine whether a 

ditch was constructed in uplands may 

be obtained from a variety of sources, 

such as aerial photographs, soil surveys, 

property maps, plans, plots or plats, 

previous jurisdictional determinations 

and data sheets, topographical maps, 

wetland inventory maps, and 

photographs. 

One commenter stated that mitigation 

should be required for impacts to 

wetlands and aquatic life that may be 

established in those ditches. In contrast, 

another commenter stated that requiring 

mitigation for reversion to a prior 

upland condition is excessive and 

unreasonable. 

We do not believe that it would be 

appropriate or practical to establish a 

national standard requiring mitigation 


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for all activities authorized by this 

NWP. The need for compensatory 

mitigation to ensure minimal individual 

and cumulative adverse effects will be 

made by district engineers on a case-bycase basis, in response to preconstruction notifications. We believe 

that the provisions of general conditions 

27 and 20 will allow the district 

engineer to determine if any 

compensatory mitigation is needed to 

reduce the effects of the activities 

authorized under this permit to the 

minimal level. 

One commenter suggested that the 

one-acre limit should not apply if the 

impacted ditch is replaced with another 

ditch that would perform the same 

functions. 

Although this NWP may be used to 

authorize discharges of dredged or fill 

material into ditches for the purpose of 

relocating those ditches, the one acre 

limit applies to the loss of waters of the 

United States that results from the 

discharge of dredged or fill material into 

the existing ditch. 

One commenter requested 

clarification on how the ‘‘constructed in 

uplands’’ criterion reconciles with 

Corps policy at 51 FR 41217, under 

which ditches excavated on dry land are 

generally not waters of the United 

States. 

The proposed NWP is consistent with 

the policy established in the November 

13, 1986 Federal Register Notice (51 FR 

41217), because that policy also states 

that the Corps reserves the right on a 

case-by-case basis to determine whether 

non-tidal ditches excavated on dry land 

or other features constitute waters of the 

United States. 

One commenter requested 

clarification on how this NWP 

reconciles with the Section 404 

exemption for construction and 

maintenance of irrigation ditches at 33 

CFR 323.4(a)(3). 

The Section 404 exemption at 33 CFR 

323.4(a)(3) applies to construction and 

maintenance of irrigation ditches or the 

maintenance of drainage ditches. This 

NWP authorizes activities not covered 

in the exemption, such as discharges of 

dredged or fill material to restore the 

area to its previous upland condition. 

One commenter stated that this NWP 

should not be issued because it is 

contrary to the Congressional intention 

that ditches should be regulated as point 

sources and not as navigable waters. 

This preamble does not address the 

limits of Clean Water Act jurisdiction. 

To the extent that ditches are 

determined to be waters of the United 

States, this permit provides 

authorization for discharges of dredged 

or fill material into them provided all 

conditions for its use are met. 

One commenter recommended 

providing definitions for ‘‘ditch’’ and 

‘‘canal’’. 

We believe that district engineers 

should maintain the discretion to 

determine on a case-by-case basis 

whether particular features are ditches 

or canals and also are waters of the 

United States. 

Proposed NWP B is issued as NWP 46 

with the modifications discussed above. 

NWP 47. Pipeline Safety Program 

Designated Time Sensitive Inspections 

and Repairs. In the September 26, 2006, 

Federal Register notice, we proposed 

this NWP (as proposed NWP C) to 

authorize the inspection, repair, 

rehabilitation, or replacement of any 

currently serviceable structure or fill for 

pipelines that are determined to be 

time-sensitive in accordance with the 

Pipeline and Hazardous Materials Safety 

Administration’s Pipeline Safety 

Program (PHP), including its criteria at 

49 CFR parts 192 and 195. 

Thirteen comment letters were 

received concerning this proposed NWP 

with six expressing strong support for 

its issuance but also inquiring about the 

applicability of general conditions 17 

(Endangered Species) and 18 (Historic 

Properties) to the use of the permit. Six 

commenters recommended that the 

Corps enter into programmatic ESA 

consultation with PHP and the U.S. Fish 

and Wildlife Service and the National 

Marine Fisheries Service. 

This NWP only authorizes activities 

that are included in the U.S. Department 

of Transportation’s Pipeline Repair and 

Environmental Guidance System 

(PREGS). The PHP is the lead Federal 

agency for these activities and, as such, 

conducts any Section 7 consultation 

required under the Endangered Species 

Act and consultation required under 

Section 106 of the National Historic 

Preservation Act. In cases where PHP 

has not conducted consultation required 

by either Section 7 of the Endangered 

Species Act, or Section 106 of the 

National Historic Preservation Act, 

permittees are required by 33 CFR 

330.4(f) and (g) to notify the Corps if 

there are threatened or endangered 

species or critical habitat, or historic 

properties that might be affected or are 

in the vicinity of the project. 

One commenter declared that 

‘‘inspections’’ should be removed from 

the list of authorized activities since 

technology exists which allows pipeline 

operators to evaluate a pipeline without 

the need to visually inspect it. One 

commenter said that this NWP should 

not authorize the repair of pipelines that 

have deteriorated as a result of neglect. 

Two commenters stated that acreage 

limits should be placed on the NWP. 

One commenter remarked that access 

roads should be authorized by the NWP 

because problems will occur when an 

activity requires use of multiple NWPs 

and one of the other NWPs has an 

acreage limit. 

We disagree with the first two 

comments of the preceding paragraph. 

Pipeline inspections are critical 

activities related to the repair of these 

pipelines. In certain instances it is 

necessary that the pipeline be visually 

inspected, and this permit allows 

excavation to expose the pipeline. 

Impacts authorized under this NWP will 

be temporary in nature so the aquatic 

resources will recover over time. This 

NWP provides Department of the Army 

authorization for the repair, 

rehabilitation, or replacement of 

currently serviceable pipelines. These 

pipelines are unlikely to become 

unserviceable as a result of neglect, 

since operators are required to 

periodically inspect these pipelines and 

make necessary repairs or replacements. 

We do not believe acreage limits are 

necessary, given the nature of the 

category of activities authorized by this 

NWP. Access roads will not generally 

need to be constructed to conduct the 

pipeline inspection and repair, since 

access roads would likely have been 

built at the time the pipeline was 

constructed, or the terrain will not 

impede access to the pipeline. If 

temporary access roads are necessary to 

conduct the pipeline inspection and 

repair activity, they are authorized by 

this NWP as long as they are removed 

upon completion of the work. This NWP 

requires that all temporary structures 

and fill be removed and the area 

restored to preconstruction elevations. 

We have modified paragraph (c) of this 

NWP so that it is consistent with general 

condition 13, Removal of Temporary 

Fills. 

One commenter inquired as to why 

temporary activities are included in the 

proposed NWP when this work is being 

removed from other NWPs that 

authorize maintenance. Two 

commenters requested we add a preconstruction notification requirement 

for environmentally sensitive areas. One 

commenter said the pre-construction 

notification should be required for all 

activities. Two commenters were against 

and one commenter supported 

prohibiting division engineers from 

placing regional conditions on the NWP. 

Since the objective of this NWP is to 

authorize inspections and repairs for 

eligible pipelines in a timely manner, 

the NWP authorizes temporary activities 

necessary to conduct the inspection, 


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repair, rehabilitation, or replacement 

activity. We do not agree that it is 

necessary to require pre-construction 

notification for these activities, since 

PHP is the lead Federal agency for these 

activities. Submitting a pre-construction 

notification when a pipeline is in 

critical need for repair will delay the 

repair and increase the risk that the 

pipeline will leak and cause more 

damage to the aquatic environment, 

particularly environmentally sensitive 

areas. Given the nature of the activities 

authorized by this NWP, as well as its 

objective of authorizing these activities 

in a timely manner, we believe it is 

unnecessary for division engineers to 

regionally condition this NWP. 

However, division engineers can impose 

regional conditions on this NWP that 

are limited to measures necessary to 

minimize adverse effects to the aquatic 

environment, as long as those regional 

conditions do not require preconstruction notification or cause delays 

to inspection and repair activities. We 

have added a ‘‘Note’’ to this NWP to 

explain what types of regional 

conditions may be added by division 

engineers. 

Two commenters suggested that in 

order for water quality certifications to 

be issued, a list of ‘‘time-sensitive’’

activities as well as appropriate best 

management practices must be provided 

by PHP and an opportunity for public 

comment should be given for the best 

management practices. One commenter 

stated PHP has not made all the best 

management practices available to the 

pipeline operators yet. 

We do not agree that it is either 

necessary or feasible to provide a list of 

time-sensitive activities or best 

management practices for states, Indian 

tribes, and EPA to make their water 

quality certification decisions for this 

NWP. In response to concerns raised by 

states or tribes through the water quality 

certification process, districts may add 

regional conditions as long as they do 

not preclude its use for time sensitive 

repairs. Identification of time-sensitive 

activities will be made in the future, as 

the program is implemented. Best 

management practices may vary by 

region, and we do not believe it is 

necessary for PHP to solicit public 

comment on those best management 

practices prior to implementing this 

NWP. 

Proposed NWP C is issued as NWP 47 

with the modifications discussed above. 

NWP 48. Existing Commercial 

Shellfish Aquaculture Activities. We 

proposed to issue this new NWP to 

authorize ongoing shellfish aquaculture 

activities throughout the United States. 

The majority of commenters 

expressed their support for this new 

NWP, stating that existing commercial 

shellfish operations do not have more 

than minimal adverse impacts on the 

aquatic environment and contribute 

benefits to the ecosystem that balance 

any adverse impact. Referencing 

numerous scientific studies as evidence 

of the beneficial aspects of shellfish 

culture, many of these commenters 

expressed their desire for the 25-acre 

threshold for pre-construction 

notification to be raised considerably, or 

eliminated entirely, stating it was 

arbitrary and created an unnecessary 

bureaucratic paperwork burden for the 

operators and the Corps. In addition, 

many commenters recommended that 

the NWP not be limited only to existing 

operations but also be available for the 

expansion of existing operations and for 

new operations. One commenter 

supported limiting this NWP to existing 

operations. A few commenters objected 

to the issuance of this NWP, stating that 

commercial shellfish aquaculture 

operations of unlimited size threaten 

submerged aquatic vegetation, 

shorebirds, and other estuarine 

resources, and potentially exceed the 

minimal impact threshold, both 

individually and cumulatively. Several 

commenters believed that potential for 

adverse impacts was related more to 

specific activities than to the geographic 

extent of an operation, and that whether 

an operation engaged in these activities 

was thus a better basis for limits or preconstruction notification thresholds. 

One commenter recommended requiring 

pre-construction notification for the use 

of canopy predator nets that cover broad 

areas of an aquaculture operation 

because of potential impacts to a variety 

of aquatic species. One commenter 

recommended requiring preconstruction notification for all 

activities authorized by this NWP, while 

another commenter suggested a simple 

reporting requirement in lieu of a preconstruction notification. 

Since shellfish improve water quality 

and increase food production, we 

believe that there is generally a net 

increase in aquatic resource functions in 

estuaries or bays where shellfish are 

produced. We do not believe it is 

necessary to require pre-construction 

notification for all activities authorized 

by this NWP, including those that 

involve canopy predator nets. Concerns 

regarding the use of canopy predator 

nets are more appropriately address 

through regional conditions imposed by 

division engineers, or by special 

conditions added to NWP 

authorizations by district engineers. 

After review of the comments and of 

scientific literature, we have modified 

the pre-construction notification 

requirements. Pre-construction 

notification will be required if the 

project area is greater than 100 acres or 

if the operation conducts any of the 

following activities: any reconfiguration 

of the aquaculture activity, such as 

relocating existing operations into 

portions of the project area not 

previously used for aquaculture 

activities; a change in species being 

cultivated; a change in culture methods 

(e.g., from bottom culture to off-bottom 

culture); or dredge harvesting, tilling, or 

harrowing in areas inhabited by 

submerged aquatic vegetation. We do 

not believe it is necessary to require preconstruction notification for on-going 

operations, unless the project area is 

greater than 100 acres or the operation 

involves dredge harvesting, tilling, or 

harrowing in areas inhabited by 

submerged aquatic vegetation, since ongoing operations not meeting these 

criteria are unlikely to result in 

significant adverse environmental 

effects. However, in order to generate 

better information for future permitting 

decisions, for those activities that do not 

require pre-construction notification, we 

are requiring operators to submit a brief 

report that will provide the district 

engineer with basic information on the 

activity. The report must include the 

size of the project area, the location of 

the aquaculture operations, a brief 

description of the culture methods used, 

a brief description of the harvesting 

method(s) used, the name(s) of the 

cultivated species, and a statement 

addressing whether canopy predator 

nets will be used. For each existing 

operation not submitting a preconstruction notification, the report 

needs to be submitted within 90 days of 

the effective date of this NWP. 

Following submission of this one-time 

report, no further reporting is necessary. 

However, if there are any changes to the 

operation that require Department of the 

Army (DA) authorization, then preconstruction notification is required if 

the proposed changes meet any of the 

pre-construction notification triggers. 

Depending on the region and culture 

method used, there may be additional 

restrictions (e.g., limits on timing of 

certain activities) that are necessary to 

further minimize impacts to aquatic 

resources. These regional concerns are 

best addressed by district engineers in 

coordination with State and local 

agencies and handled through regional 

conditioning. 

Many commenters were confused 

about the definitions of ‘‘existing 


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operation’’ and ‘‘project area’’ and 

requested clarification of these terms. 

For the purposes of this NWP, an 

existing operation is one that has been 

granted a permit, license, or lease from 

a state or local agency specifically 

authorizing commercial aquaculture 

activities and which has undertaken 

such activities prior to the date of 

issuance of this NWP. For the purposes 

of this NWP, the project area is defined 

as the area of waters of the United States 

occupied by the existing operation. In 

most cases, the project area will consist 

of the area covered by the state or local 

aquaculture permit, license, or lease. 

The project area may consist of several 

sites that are not contiguous. The project 

area may include areas in which there 

has been no previous aquaculture 

activity and/or areas that periodically 

are allowed to lie fallow as part of 

normal operations. Relocation of 

existing operations into portions of the 

project area not previously used for 

aquaculture activities may be authorized 

by this NWP but will require a preconstruction notification. Cultivation in 

areas that were previously used but 

allowed to lie fallow does not require a 

pre-construction notification. Operators 

should maintain appropriate 

documentation showing which areas 

were previously cultivated. 

This NWP is limited to work 

associated with the continued operation 

of existing commercial shellfish 

operations, many of which have been in 

place for hundreds of years. The 

potential for adverse environmental 

impacts from such existing operations is 

minimal, and we support the objectives 

of the U.S. Department of Commerce’s 

Aquaculture Policy to increase shellfish 

productivity in this country. Although 

we believe new projects and the 

expansion of existing operations are also 

unlikely to have a high potential for 

adverse affects on the aquatic 

environment, without an established 

data set from which to work, we are not 

prepared to include them in this NWP 

at this time. Although new projects and 

the expansion of existing operations are 

not authorized initially by this NWP, 

once authorized by another form of DA 

permit, such as a regional general 

permit or an individual permit, the 

commercial shellfish activities may 

continue in accordance with the terms 

and conditions of the issued permit 

and/or this NWP. Division engineers 

will conduct regional reviews of 

commercial shellfish aquaculture 

activities in coordination with 

interested agencies and shellfish 

producers over the next 5 years. After 

these reviews are completed, we may be 

prepared to propose an NWP to 

authorize new commercial shellfish 

aquaculture operations and the 

expansion of existing operations in the 

next NWP re-issuance cycle. The 

information gathered through the preconstruction notification process and 

reporting requirement for existing 

operations in the current NWP will 

support this effort. 

Several commenters expressed 

confusion regarding whether ongoing 

commercial shellfish operations require 

reauthorization under this NWP, if those 

existing operations have previously 

been permitted by the Corps. 

Existing operations previously 

authorized by another NWP or another 

form of DA permit, such as a regional 

general permit or an individual permit, 

are covered until the expiration of the 

original permit. If the operator wishes to 

continue, and the operation’s size, 

conditions, and/or practices trigger the 

pre-construction notification 

requirements of this NWP, then a preconstruction notification must be 

submitted to the appropriate district 

office for review prior to the expiration 

date of the original permit in order to 

remain in compliance with Federal 

laws. If the pre-construction notification 

requirements are not triggered, the 

operator must submit the required brief 

report within 90 days of the beginning 

of coverage under this NWP. 

This NWP authorizes the continued 

operation of existing commercial 

shellfish aquaculture operations. The 

continued operation of an aquaculture 

activity may involve removing and 

replacing structures in navigable waters 

of the United States on a recurring basis 

and requires a current DA permit. 

However, if an operator is installing a 

fixed structure, the construction period 

for a DA permit is the period of time 

where the permittee is authorized to 

conduct work in navigable waters of the 

United States and/or discharge dredged 

or fill material into waters of the United 

States. Once the DA permit expires, 

further authorization is not required to 

maintain the structures or fills, but if 

additional work in navigable waters or 

discharges of dredged or fill material in 

jurisdictional waters are necessary for 

the continued operation of those 

activities, then another DA permit is 

required. 

Many commenters were confused 

about the requirement to submit a preconstruction notification, assuming that 

having to submit a pre-construction 

notification meant that an individual 

permit would be required. The 

requirement to submit a preconstruction notification does not mean 

that an individual permit will be 

required. Instead, it means that a district 

office will review the project, in 

coordination with appropriate resource 

agencies, within a 45-day timeframe and 

respond to the applicant with either a 

verification of the applicability of the 

NWP or a determination that an 

individual permit, or other type of DA 

permit, is required. If the applicant does 

not hear back from the Corps within 45 

days, he or she may assume that the 

operation is authorized by the NWP. 

A pre-construction notification is a 

brief document that is intended to 

provide the district engineer with 

enough information to determine 

whether an activity is authorized by 

NWP. The information requirements for 

a pre-construction notification are listed 

in paragraph (b) of general condition 27, 

Pre-Construction Notification. Detailed 

studies or analyses are not required for 

pre-construction notifications. The 

required description of the direct and 

indirect adverse environmental effects 

that are expected to result from the 

NWP activity should be brief, but with 

sufficient detail to allow the district 

engineer to determine whether the 

adverse environmental effects will be 

minimal and assess the need for 

compensatory mitigation. The 

description for the pre-construction 

notification should include the size of 

the project area, the name(s) of the 

species being cultivated, the types of 

cultivation methods (e.g., long lines, 

bottom culture, rack and bags), and the 

harvesting method (e.g., hand pick, 

dredge, long line harvest). The 

description should also state when 

dredge harvesting, harrowing, or tilling 

will occur in waters with SAV. 

For all projects that do not trigger the 

pre-construction notification 

requirements of the NWP, submission of 

a brief report is required. This reporting 

requirement will help us monitor the 

use of this NWP, to help ensure that it 

authorizes only those activities that 

have minimal individual and 

cumulative adverse effects on the 

aquatic environment and other public 

interest review factors. We have 

attempted to keep the reporting 

requirement as simple as possible, to 

minimize administrative burdens on 

operators. 

A few commenters suggested that 

NWP 48 is unnecessary because NWPs 

4 and 27 adequately cover all the needs 

of commercial shellfish operations. 

Although shellfish seeding activities 

were authorized by previous versions of 

NWP 4, that NWP did not authorize 

additional structures or work in 

navigable waters commonly associated 

with commercial shellfish aquaculture 

activities, such as the installation of 

stakes and netting in navigable waters to 


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prevent predators from feeding upon the 

shellfish. Because of the issuance of this 

NWP and the modification of NWP 27, 

it is no longer necessary to include 

shellfish seeding in the list of activities 

authorized by NWP 4 and we have 

removed it. NWP 27 does not cover 

commercial shellfish operations. It 

covers shellfish habitat restoration 

activities, including shellfish seeding, 

that are conducted to restore shellfish 

populations. Restored populations may, 

at some future date, be subject to 

recreational harvesting; but the purpose 

of activities conducted under NWP 27 is 

restoration, not commercial aquaculture. 

Although NWP 48 represents a change 

in how commercial shellfishing 

operations are being regulated by the 

Corps, structures and other work in 

navigable waters of the United States 

have been regulated activities for 

decades. Discharges of dredged or fill 

material into waters of the United States 

have been regulated under Section 404 

of the Clean Water Act since 1972, but 

the definitions of these terms have 

changed over the years. Individual 

permits remain a permitting tool that 

will be necessary in some 

circumstances. There are several 

districts that currently have regional 

general permits in place to authorize 

aquaculture activities and more general 

permits are expected to be developed. 

In the preamble to the September 26, 

2006, proposal, we solicited comments 

on whether to impose limits on the 

quantity of dredged or fill material that 

could be discharged into navigable 

waters under this NWP. One commenter 

said that this NWP should be 

conditioned to prohibit discharges of 

dredged or fill material or to require preconstruction notification for each 

activity involving such discharges. 

Many commenters stated that there 

should be no limitation on the quantity 

of dredged or fill material that could be 

discharged into navigable waters 

because the cost of such material is 

limiting and also because most of the 

material is removed during harvest. 

Many mentioned large Federal 

restoration projects that have utilized 

shellfish seeding methods to enhance 

estuaries. Several commenters objected 

to having no limits and several 

suggested limiting the discharge to 3 to 

6 inches or a certain percentage of the 

water column. Several others indicated 

that materials such as marl, concrete, 

and gravel, in addition to shell and shell 

fragments, should be included in the 

material authorized for discharge. 

It would be illogical to prohibit 

discharges of dredged or fill material 

under this permit, since without such 

discharges, no permit is required 

anyway. This NWP authorizes 

discharges of dredged or fill material 

into waters of the United States only for 

shellfish seeding, rearing, cultivating, 

transplanting, and harvesting activities 

for on-going commercial shellfish 

aquaculture activities. With the 

exception of harvesting activities, such 

discharges usually enhance habitat 

characteristics to support the growth of 

shellfish. As for harvesting activities, 

pre-construction notification is required 

for dredge harvesting in areas inhabited 

by submerged aquatic vegetation, so 

case-by-case review will be conducted 

to determine if the activity results in 

more than minimal adverse effects on 

the aquatic environment. Preconstruction notification is also 

required for tilling and harrowing in 

submerged aquatic vegetation. Other 

harvesting activities that are part of ongoing activities are unlikely to result in 

more than minimal adverse effects. 

Division engineers may impose regional 

conditions on this NWP to further 

restrict cultivation or harvesting 

practices or to require pre-construction 

notification for additional practices that 

may be of concern within a particular 

area. 

Many commenters expressed concern 

over whether the gear associated with 

commercial shellfish culture would be 

authorized by this NWP, noting that 

much of the in-water gear serves as 

habitat for other aquatic species and is 

necessary for the success of a 

commercial shellfish venture. Other 

commenters expressed concern over the 

waste and trash left by geoduck 

operations and the adverse impacts that 

litter has on the surrounding intertidal 

environment. 

This NWP authorizes structures or 

work in navigable waters of the United 

States, as well as discharges of dredged 

or fill material into all waters of the 

United States for the purposes of the 

commercial seeding, rearing, 

cultivating, transplanting, and 

harvesting of shellfish, which may 

involve the installation of buoys, floats, 

racks, trays, nets, lines, tubes, and 

containers, as well as other associated 

structures and work. The language of 

the NWP has been modified to clarify 

that it does not authorize the discharge 

of dredged or fill material into waters of 

the United States for attendant features 

of commercial aquaculture operations 

such as boat ramps, stockpiles, staging 

areas, and moorings or for the 

deposition of shell material back into 

tidal waters as a waste material. As 

stated above, discharges of dredged or 

fill material below the high tide line/ 

ordinary high water mark must be of the 

minimum necessary to provide suitable 

planting substrate. Examples of 

commercial shellfish species for which 

this NWP may be used to authorize 

existing commercial aquaculture 

activities include oysters, clams, 

geoducks, mussels, and scallops. The 

proposed NWP does not authorize 

commercial aquaculture activities for 

crustaceans or finfish. Types of gear 

specific to a particular region or species 

are best evaluated on a regional basis by 

the district engineer and can be 

addressed through regional conditions. 

There are different types of shellfish 

seed that can be used to increase 

shellfish production. Shellfish seed may 

consist of immature individual 

shellfish, an individual shellfish 

attached to a shell or shell fragment (i.e., 

spat on shell) and shellfish shells, shell 

fragments, and/or shell fragments mixed 

with gravel/concrete/limestone placed 

into waters to provide a substrate for 

attachment by free swimming shellfish 

larvae (i.e., natural catch). Several 

commenters asked that we clarify the 

definition of shellfish seeding. We have 

provided a definition of shellfish 

seeding in the ‘‘Definitions’’ section of 

the NWPs. This definition was based on 

the definition provided in the preamble 

to the September 26, 2006, Federal 

Register notice (71 FR 56275). 

Most commenters asked that we 

clarify our definition of submerged 

aquatic vegetation (SAV) and asked that 

we limit our concern to those species of 

aquatic vegetation that have been shown 

to have beneficial environmental effects. 

Some commenters expressed concern 

that any commercial aquaculture 

activity would have a negative impact 

on SAV and therefore this NWP should 

not be issued. Many commenters asked 

that we remove the pre-construction 

notification requirement for operations 

having more than 10 acres of the project 

area occupied by SAV, stating that 

shellfish beds clarify the water thereby 

increasing the likelihood that SAV 

would colonize their project area. A few 

commenters suggested that we define 

the density of bed and length of time 

present (i.e., recognize seasonal 

population fluctuation) necessary to 

trigger the reporting requirement. 

Commercial shellfish aquaculture 

activities often take place in, and are 

found to co-exist with, intertidal areas 

that are occupied by submerged aquatic 

vegetation (i.e., vegetated shallows). The 

definition of vegetated shallows (see 

Part D, Definitions) clarifies that 

vegetated shallows are those areas that 

are permanently inundated and under 

normal circumstances have rooted 

aquatic vegetation, such as seagrasses in 

marine and estuarine systems and a 

variety of vascular rooted plants in 


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freshwater systems. Macroalgae are not 

included in our definition of SAV nor 

is it our intent to provide protection for 

noxious or invasive species such as 

Zostera japonica. However, to minimize 

adverse effects to valuable aquatic 

habitat, such as shallows vegetated by 

species such as Zostera marina, we are 

requiring pre-construction notification 

for dredge harvesting, tilling, or 

harrowing in areas inhabited by SAV. 

To capture the regional variances, such 

as colonization rate, population shifts, 

density, and species composition, 

districts may choose to further refine the 

definition of SAV in their regional 

conditions to better reflect 

environmental circumstances in their 

region. We are removing the proposed 

requirement to submit a preconstruction notification if the project 

area includes 10 acres or more of SAV 

because we have determined that only 

certain types of activities (dredge 

harvesting, tilling, harrowing) in SAV 

areas have the potential to cause more 

than minimal adverse impacts. 

The majority of commenters objected 

to the proposed prohibition against the 

cultivation of new species by an 

operation while recognizing the need to 

protect the environment from invasive 

species colonization. A few commenters 

were in favor of the prohibition citing 

concerns about invasive species and 

changing culture methods. One 

commenter said that this NWP should 

not authorize experimental cultivation 

of new species in a waterbody. 

Upon review of the comments, the 

proposed NWP has been modified 

slightly. The NWP does not authorize 

aquaculture activities for any species 

that were not previously cultivated in 

the waterbody. However, under this 

NWP, an individual operator can change 

the species grown under this NWP 

within the project area, provided the 

change is limited to species that have 

been previously cultivated in the water 

body. Such a change would require preconstruction notification. The 

commercial production of a shellfish 

species that has not been previously 

commercially produced in the 

waterbody, including new exotic (nonnative) species, may only be authorized 

by an individual permit or a regional 

general permit if applicable. Also, this 

NWP does not authorize experimental 

cultivation of new species. It only 

authorizes on-going commercial 

shellfish aquaculture activities, 

provided those activities satisfy the 

terms and conditions of this NWP. 

Experimental cultivation is considered 

to be a new activity, and may be 

authorized by other DA permits if it 

involves activities subject to the Corps 

regulatory jurisdiction. 

Producers must be licensed, as 

required, through their State’s 

regulatory agency. Commercial harvest 

will only commence under each State’s 

Shellfish Authority, as delegated by the 

U.S. Food and Drug Administration 

under the National Shellfish Sanitation 

Program. To be eligible for coverage 

under this NWP, producers must obtain 

all required permits or licenses required 

for their culture activities, such as 

transfer permits, development permits, 

and land-use permits. 

In response to commenters concerned 

about the individual and cumulative 

adverse effects to the environment and 

the many commenters who stated that 

acreage limits were not an adequate way 

of establishing or evaluating the 

interaction of the shellfish operation 

with the aquatic environment, an 

additional pre-construction notification 

threshold has been added. When an 

existing operation decides to change 

culture methods, for example to go from 

bottom-culture to long-line or from longline to bottom culture, pre-construction 

notification is required. These existing 

operations may be authorized by this 

NWP, after the district engineer has 

reviewed the pre-construction 

notification and determined that the 

new activity complies with the terms 

and conditions of the NWP and will 

have minimal adverse effects. 

We are also committed to conducting 

programmatic reviews of commercial 

shellfish activities generally to ensure 

that the Corps is authorizing only those 

activities that result in minimal 

individual or cumulative adverse effects 

on the aquatic environment with this 

NWP or other general permits for 

aquaculture activities. These reviews 

will begin as soon as possible in all 

divisions, and will involve Federal, 

State and local agencies, stakeholders, 

and the general public to help the Corps 

develop future regional and special 

conditions to mitigate impacts to the 

aquatic environment or other aspects of 

the public interest which may result 

from commercial shellfish aquaculture 

activities. Completion of these 

programmatic reviews is not necessary 

for authorization under this NWP. The 

data collected through the preconstruction notification and reporting 

requirements will support these 

reviews. 

One commenter said that this NWP 

should include conditions prohibiting 

the use of pesticides. A commenter 

stated that this NWP should require preconstruction notification for any activity 

located in National Park Service units, 

and that review by the National Park 

Service should be conducted before the 

activity is authorized by this NWP. 

The Corps does not regulate 

application of pesticides under Section 

10 of the Rivers and Harbors Act of 1899 

or Section 404 of the Clean Water Act. 

The application of pesticides into 

aquatic environments is regulated by 

other agencies through other authorities. 

We do not agree that pre-construction 

notification should be required for ongoing commercial shellfish aquaculture 

activities being conducted in areas 

under the purview of the National Park 

Service. The National Park Service has 

the authority to control the activities 

conducted in its units, to ensure that 

those activities are consistent with any 

management requirements or objectives 

established for those units. 

Proposed NWP D is issued as NWP 

48, with the modifications discussed 

above. 

NWP 49. Coal Remining Activities. 

This is a new NWP. It provides for 

authorization of projects associated with 

the remining and reclamation of lands 

that were previously mined for coal. 

New mining may be conducted on 

adjacent areas provided that the area 

mined is smaller than 40 percent of the 

previously mined lands plus the 

unmined lands required to reclaim the 

previously mined lands as determined 

by SMCRA. Pre-construction 

notification is required for all activities 

proposed to be authorized by this 

permit, and the permittee must receive 

written notification from the District 

Engineer prior to commencing the 

activity. Additionally, the projects must 

be authorized by OSM or by states with 

approved programs under Title IV or V 

of SMCRA. 

One commenter requested that the 

proposed NWP be changed to include 

Abandoned Mine Land (AML) projects 

that are government funded or 

contracted. They believed that the 

aquatic benefits resulting from the AML 

projects are similar in nature to those 

that would be covered by this NWP, and 

that since this NWP requires 

notification, any adverse impacts to 

high-quality waters could be avoided. 

Another commenter suggested that the 

Corps clarify the extent to which NWPs 

are required for AML projects, and 

another commenter stated that the Corps 

should clearly state that no NWP of any 

kind is required for projects that fall 

under Title IV of SMCRA. One 

commenter stated that it is imperative 

that the new NWP 49 proposed by the 

Corps not inhibit efforts but rather 

support recent actions by states, EPA, 

and OSM to encourage opportunities for 

remining AML impacted lands and 

waters. 


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We agree that this NWP should 

support and encourage opportunities for 

remining AML impacted lands and 

waters. We are thus modifying the text 

of this NWP to authorize AML projects 

that include coal extraction authorized 

by Title IV of SMCRA, in addition to 

remining authorized under Title V. To 

authorize Title IV AML projects that do 

not involve coal extraction, we have 

modified NWP 37, which authorizes 

emergency watershed protection and 

rehabilitation activities. In response to 

the comment that projects conducted 

under Title IV of SMCRA should not 

require Section 404 authorization, any 

discharge of dredged or fill material into 

waters of the United States, requires an 

authorization under Section 404 of the 

Clean Water Act unless the activity is 

specifically exempt. 

Several commenters agreed that the 

Corps should issue an NWP to authorize 

remining activities. They stated that 

until recently the Corps has not 

recognized the environmental benefits 

of remining and basically ignored 

remining incentives developed by 

Congress and other Federal agencies 

such as OSM and USEPA. However, 

these commenters believe that the 

requirement that any newly mined land 

not exceed 40 percent of previously 

mined land plus any unmined land 

necessary for reclamation is 

inappropriate. They state that the ratio 

should be left up to the SMCRA agency 

on a case-by-case basis and that a rigid 

40 percent ratio may not allow enough 

material to be generated to reclaim the 

previously mined land. One commenter 

stated that the Corps should reconsider 

the proposed limitations since an 

overall improvement in aquatic 

resources is guaranteed and, as 

proposed, the ratio threshold only 

serves to limit the reclamation of 

abandoned mine lands. One commenter 

recommended that the ratio limitation 

be removed and that the Corps rely 

solely on the demonstration that the 

overall project, including the 

reclamation activity and any new 

mining, will result in a net increase in 

aquatic functions. One commenter 

stated that the Corps should reconsider 

basing permit eligibility on uplands area 

(acreage), which is outside the 

jurisdiction of the Corps, and instead 

focus on the improvement that such 

activities would have on the aquatic 

resources within the project area, which 

is within Corps jurisdiction. Another 

commenter said that this NWP should 

not authorize coal mining in any new 

areas, because of the potential for those 

activities to cause more than minimal 

adverse effects on the aquatic 

environment. 

We would like to clarify that the 

‘‘remined’’ area on which the 40 percent 

ratio is based includes any unmined 

lands required to reclaim the previously 

mined lands, as determined by the 

SMCRA agency. The allowance for an 

additional 40 percent of newly mined 

area is above and beyond the area 

required to complete the restoration of 

the previously mined land. This NWP 

was intended to authorize single and 

complete projects where a clear majority 

of the mining would be considered 

remining, and therefore offer operators 

incentives to reclaim previously mined 

lands. We thus believe that there needs 

to be both a limit on new mining and 

a requirement for an overall increase in 

aquatic resource functions for this NWP. 

We believe it is appropriate to authorize 

a limited amount of coal mining in new 

areas, as long as the remining and 

reclamation activities are conducted. In 

addition, the adverse effects of any new 

mining will be reviewed through the 

pre-construction notification process, 

and the permittee cannot begin work 

until written verification is received 

from the district engineer, after 

determining that the remining activity, 

plus any new mining, will result in 

minimal adverse effects on the aquatic 

environment. 

Proposed Limits 

One commenter suggested that while 

some impact limits may be appropriate, 

the limit should not be based on 

drainage area, because such an approach 

fails to recognize that small impacts that 

occur in the lower reaches of a 

watershed may result in more than 

minimal adverse effects on the aquatic 

environment. One commenter stated 

they supported the concept of this NWP 

but believe it should have the same 

restrictions as NWP 21. Several 

commenters recommended that if the 

Corps does issue this NWP, it should 

include limitations on the linear feet of 

stream that can be filled. One 

commenter suggested a limit of 1⁄2-acre 

per use (which is the same as that 

proposed for NWP 50 and other NWPs), 

and stated that without such a limit this 

NWP would allow impacts that far 

exceed those allowed under other 

NWPs. One commenter recommended 

imposing a 300 linear foot limit for 

losses of stream bed. Several 

commenters recommended limiting this 

NWP to activities that result in the loss 

of less than 300 linear feet of streams, 

to be consistent with other NWPs. 

We did not propose impact limits 

based on drainage area. We also do not 

believe that specific acreage or linear 

feet of stream limits should be included 

on a national basis for this NWP and did 

not proposed such limits. If division 

engineers believe they need to add 

limits at a regional level to ensure that 

this NWP authorizes only activities with 

minimal adverse effects on the aquatic 

environment and which satisfy other 

public interest review factors, they may 

do so. We believe that at a national level 

the ratio limitation and the requirement 

for an overall increase in aquatic 

function are sufficient to ensure that 

this NWP authorize only activities that 

produce no more than minimal adverse 

impacts, both individually and 

cumulatively. Furthermore, this NWP is 

used to provide Section 404 

authorization for surface coal mining 

activities that have also been authorized 

by OSM or states with approved 

programs under Title IV or Title V of 

SMCRA. The Corps believes that the 

analyses and environmental protection 

standards required by SMCRA in 

conjunction with the pre-construction 

notification review further ensure that 

the NWP activities result in minimal 

individual and cumulative adverse 

impacts on the aquatic environment. In 

fact, this NWP requires a net 

environmental benefit in the form of 

increased aquatic resource functions, 

which will be identified through 

functional assessment methods. 

Through the pre-construction 

notification process, district engineers 

can also impose special conditions on a 

case-by-case basis to ensure that the 

adverse effects on the aquatic 

environment are minimal. Also, if the 

district engineer determines through 

this case-by-case review that the activity 

has the potential to result in more than 

minimal adverse effects to the aquatic 

environment, he or she can exercise 

discretionary authority to require an 

individual permit. 

Functional Analysis 

A couple of commenters stated that 

the Corps should not require a 

functional analysis of the pre-mining 

aquatic conditions. They state that in 

these cases, water quality is poor and 

can only be improved by completion of 

the authorized activities. Furthermore, 

many of the sites are located on waters 

that are listed on a state’s 303(d) 

impaired waters lists. A couple of 

commenters stated that the Corps’

requirement for a quantified prediction 

of the environmental benefits that will 

result is unnecessary because EPA data 

shows that remining operations will 

result in a net increase in aquatic 

resource functions. One commenter 

stated that, as the Corps has the data to 

show that reclamation projects in 


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formerly mined areas have a beneficial 

environment effect, every permittee 

should not need to prove this again, in 

a duplication of the SMCRA 

requirements. One commenter stated 

that the Corps should not specify that a 

net overall improvement to the site’s 

aquatic functions is required, but should 

focus on whether the project will have 

minimal impacts to aquatic resources in 

the project area. 

We agree that remining projects are 

generally beneficial, which is one of the 

reasons for proposing to issue this new 

NWP. However, we must track impacts 

and mitigation and show both on an 

individual and a cumulative basis that 

each project has a minimal impact on 

the aquatic environment. This can only 

be done by the applicant submitting 

information on pre-mining conditions as 

well as what they anticipate the post 

mining conditions will be. This permit 

requires that the reclamation plan result 

in a ‘‘net increase in aquatic resource 

functions’’. Studies typically show that 

remining operations do improve areas 

that were degraded by past mining. 

However, landscape characteristics 

vary, as do mining and reclamation 

practices. Furthermore, as an incentive, 

this permit also authorizes a limited 

amount of new mining in previously 

unmined areas adjoining the remined 

area. Therefore, improvements to 

aquatic resource functions must be 

demonstrated for any project authorized 

under this NWP. To do this, the 

permittee must submit functional 

assessments showing that the project as 

a whole, including remining, 

reclamation and any new mining, will 

result in improved functions, such as 

water quality, sediment transport or 

retention, and habitat, as appropriate for 

the specific type of aquatic habitat (e.g., 

stream or wetland). The functional 

assessments can be based on 

information developed as part of the 

SMCRA process, and should clearly 

identify and, if possible, quantify, the 

functional lift that will be achieved for 

each function. We realize the often poor 

quality of the environment where these 

projects are proposed and appreciate the 

benefits to the aquatic environment that 

can be achieved by completing these 

projects. 

We understand coal mining is covered 

by many environmental regulations, 

however the Corps has determined that 

the current SMCRA process does not 

adequately address impacts to the 

aquatic environment as required under 

Section 404 of the Clean Water Act. 

Accordingly, this NWP does not 

duplicate the SMCRA permit process, 

but we rely on that process for 

information that is useful in our Section 

404 analyses. We work with the other 

agencies to avoid potential duplication 

of effort, and currently uses appropriate 

work and studies done by or for others 

(i.e., ESA or SHPO surveys/findings) in 

our analyses of proposed projects. 

Mitigation 

A couple of commenters stated that 

the Corps should not require additional 

mitigation beyond what is already 

required of the applicant pursuant to the 

SMCRA permit, since the permitted 

activities will lead to significant water 

quality improvements both at the site 

and in the watershed. A number of 

commenters asserted that the Corps has 

not demonstrated that compensatory 

mitigation offsets the adverse impacts of 

this NWP. Several commenters also 

stated that mitigation must be based on 

an assessment of stream functions, for 

which the Corps has no approved 

methods. One commenter recommended 

that mitigation should result in at least 

a 1:1 replacement of acres lost in order 

to achieve no net loss of waters of the 

United States from this NWP. Two 

commenters stated that the CWA does 

not allow the Corps to issue general 

permits based on the use of 

compensatory mitigation to reduce the 

environmental impacts to minimal. 

As a result of the pre-construction 

notification process the Corps will 

review each project proposed for 

authorization by this NWP on a case-bycase basis. Additional mitigation may 

not be required for a project. However, 

this will be determined through the 

district engineer’s minimal impact 

determination. As stated in our 

regulations, we can rely on mitigation in 

making a minimal adverse 

environmental effects determination 

(see 33 CFR 330.1(e)(3)). 

The Corps will review the impacts 

from the proposed final design using a 

functional assessment method. If the 

functions gained by the proposed 

project exceed the functions lost as a 

result of proposed activities then 

additional mitigation may not be 

required. We are currently developing 

new stream functional assessment 

protocols for identifying the functions 

lost through impacts and the functions 

gained or enhanced through mitigation. 

General condition 20 establishes the 

framework for determining appropriate 

mitigation and achieving no net loss of 

aquatic resources. The Corps takes into 

account the fact that, in certain areas 

and circumstances, any compensatory 

mitigation required by the Corps may be 

fully encompassed or exceeded by 

requirements of others (e.g., reclamation 

requirements under SMCRA). As long as 

the impacts to the aquatic environment 

are fully mitigated, the Corps will not 

require additional compensation. 

Pre-Construction Notification 

Requirement 

One commenter requested the preconstruction notification requirement be 

removed. One commenter expressed 

approval of the requirement that the 

applicant receive written authorization 

from the district engineer prior to 

commencing the activity. 

We believe that the pre-construction 

notification requirement helps ensure 

that no activity authorized by this 

permit will result in greater than 

minimal adverse impacts, either 

individually or cumulatively, on the 

aquatic environment, because it requires 

a specific case-by-case review of each 

project. If the district engineer 

determines through this case-by-case 

review that the activity has the potential 

to result in more than minimal adverse 

effects to the aquatic environment, he or 

she can exercise discretionary authority 

to require an individual permit. 

Minimal Adverse Effects 

A number of commenters stated that 

this NWP would result in more than 

minimal adverse environmental effects, 

particularly on a cumulative basis, and 

would result in significant degradation 

of streams. Therefore, the commenters 

believe NWPs should not be used to 

authorize these activities, and these 

activities should require individual 

permits. Several commenters cited the 

2002 programmatic Environmental 

Impact Statement on surface coal 

mining, which documented impacts to 

waters, particularly in Appalachia. A 

few commenters cited studies 

conducted by EPA and other research 

on the ecological impacts of valley fill 

on streams and on fish populations. 

We believe that a careful case-specific 

minimal impact determination is 

necessary for this NWP. In addition, as 

with NWP 21, this NWP requires a 

written verification before the project 

proponent may proceed with the work. 

The applicant must clearly demonstrate 

that the reclamation plan will result in 

a net increase in aquatic resource 

functions, and that any adverse impacts 

to the aquatic environment are minimal. 

If the district engineer determines 

through this case-by-case review that 

the activity has the potential to result in 

more than minimal adverse effects to 

the aquatic environment, he or she can 

exercise discretionary authority to 

require an individual permit. 

Since the functions of aquatic 

resources vary widely across the 

country, assessment of cumulative 

impacts is conducted by Corps districts 


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on a watershed basis, based on regional 

and local conditions and procedures. If 

the use of this NWP results in more than 

minimal cumulative adverse effects on 

the aquatic environment in a watershed, 

the division engineer may modify, 

suspend, or revoke this NWP in that 

watershed. We believe the preconstruction notification requirements 

for this NWP ensures that authorized 

activities result in no more than 

minimal adverse impacts to the aquatic 

environment because each project is 

reviewed on a case-by-case basis and the 

district engineer either makes a minimal 

impacts determination on the project or 

asserts discretionary authority and 

requires an individual permit. 

Additionally, as noted above, division 

engineers can add regional conditions to 

any NWP to further restrict the use of 

the NWP to ensure that the NWP 

authorizes only activities with no more 

than minimal adverse effects on the 

aquatic environment in a particular 

watershed or other geographic region. 

Each district tracks losses of waters of 

the United States authorized by 

Department of the Army permits, 

including verified NWPs, as well as 

compensatory mitigation achieved 

through aquatic resource restoration, 

creation, and enhancement. 

Impoundments 

Several commenters stated that coal 

slurry impoundments should not be 

authorized by this NWP. The 

commenters also stated that NWPs 21, 

49 and 50 cannot be used for both valley 

fills and coal slurry impoundments, as 

they are not activities that are ‘‘similar 

in nature’’, as required for authorization 

under an NWP. 

The NWPs are issued in accordance 

with Section 404(e) of the CWA. NWPs 

authorize categories of activities that are 

similar in nature. The ‘‘similar in 

nature’’ requirement does not mean that 

activities authorized by an NWP must 

be identical to each other. We believe 

the ‘‘categories of activities that are 

similar in nature’’ requirement of 

Section 404(e) is to be interpreted 

broadly, for practical implementation of 

the NWP program. NWPs as well as 

other general permits are intended to 

reduce administrative burdens on the 

Corps and the regulated public. We 

believe that slurry impoundments are 

support features associated with coal 

mining and thus can be authorized by 

this NWP. However, the impacts 

associated with any such 

impoundments must be addressed in 

the required demonstration that the 

project will result in a net increase in 

aquatic resource functions. 

Scope of Analysis 

One commenter stated that only poor 

and isolated communities are being 

affected by surface coal mining. Another 

commenter noted that coal slurry 

impoundments can fail and release 

mining wastes into downstream waters. 

Two commenters stated that loss of 

forest and movement of dirt associated 

with surface coal mining has 

detrimental environmental effects. 

Impacts to poor and isolated 

communities are outside of the Corps’

scope of analysis pursuant to the 

National Environmental Policy Act. The 

Corps evaluation of coal mining 

activities is focused on impacts to 

aquatic resources. In accordance with 

E.O. 12898, the Corps has determined 

that the issuance of the NWPs, 

including NWP 49, will not cause 

disproportionate impacts to minority or 

low-income communities (see 

discussion of E.O. 12898 below). The 

design and safety of coal slurry 

impoundments are more appropriately 

addressed through the SMCRA process, 

which provides design and safety 

requirements for these facilities. Mining 

in general is permitted under a separate 

Federal law, the Surface Mining Control 

and Reclamation Act. Impacts 

associated with surface coal mining and 

reclamation operations are 

appropriately addressed by the Office of 

Surface Mining or the applicable state 

agency. Where relevant to potential 

impacts on aquatic resources, the Corps 

considers documentation prepared 

pursuant to SMCRA in its review of preconstruction notifications. 

Public Participation 

Several commenters stated that this 

NWP does not provide the public with 

an opportunity to comment on the 

specific conditions of the NWP 

authorizations that affect their 

communities and watersheds. 

Section 404(e) of the Clean Water Act 

provides the statutory authority for the 

issuance of general permits on a 

nationwide basis for any category of 

activities that the Corps determines will 

have minimal adverse impacts on the 

aquatic environment, both individually 

and cumulatively. The Corps establishes 

NWPs in accordance with section 

404(e), by publishing and requesting 

comments on the proposed permits. The 

general public has the opportunity to 

comment on NWPs at this time. In order 

to address the requirements of the 

National Environmental Policy Act, the 

Corps prepares an environmental 

assessment for each NWP, as well as a 

404(b)(1) Guidelines analysis if the 

NWP authorizes activities under Section 

404 of the Clean Water Act. The 

decision document discusses the 

anticipated impacts on the Corps’ public 

interest factors from a national 

perspective. NWPs are issued at the 

conclusion of this process. The 

individual projects that are proposed for 

authorization under an NWP are not 

given a permit but a verification or 

authorization that the project complies 

with an NWP. There are no 

requirements for public comments on 

specific projects authorized under 

NWPs. However, as noted above, one of 

the bases for our determination that the 

activities authorized by this NWP will 

have minimal impacts is that they must 

also be authorized by a permit issued 

under SMCRA, which requires many of 

the same types of analyses that we 

would require under Section 404. In 

addition, each SMCRA permit action 

includes a public participation process. 

Therefore, as a practical matter, the 

public will have the opportunity to 

comment on each individual project 

authorized under this NWP. 

General 

One commenter stated that there is no 

rational basis for the creation of this 

proposed NWP since under SMCRA, the 

term ‘‘surface coal mining operations’’

includes both Title V permits 

authorizing remining of previouslymined lands as well as mining of lands 

that have not been previously disturbed. 

The commenter stated that the NWP 

may not conform to the Section 

404(b)(1) Guidelines, which would 

require greater scrutiny for remining 

activities due to the availability of 

existing benches, roads and fills that 

could render new fill in waters of the 

United States unnecessary. The 

commenter also cited Section 301(p) of 

the Clean Water Act, which allows 

exceptions to effluent limits for surface 

coal remining operations. The 

commenter asserted that Section 404 

does not have a similar exception for 

remining, and that this NWP cannot 

replace the requirements for avoidance, 

minimization and mitigation with the 

proposed amorphous standard of a ‘‘net 

increase in aquatic resource function’’. 

The commenter also stated that it was 

unclear from the text of this NWP how 

the Corps intends the remining 

authorization to work. 

New coal mining activities eligible for 

authorization under this NWP may be 

authorized by NWP 21, but in contrast 

to NWP 21 this NWP also authorizes 

abandoned mined land reclamation 

activities under Title IV of SMRCA that 

involve coal extraction. We recognize 

the benefits of restoration of mine sites 

that are causing physical and or 


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chemical impacts to waters of the 

United States and the fact that due to 

changes in technology, additional coal 

may be excavated as part of the 

reclamation process. These sites may 

also be combined with adjacent 

unmined areas to develop a project that 

is economically viable. The net result of 

these combined remining/new mining 

projects is that sources of pollution to 

downstream waters, including acid 

mine drainage and sediment, will be 

eliminated or substantially reduced 

when the site is reclaimed. We believe 

this NWP will encourage applicants to 

consider reclamation of adjacent lands 

in their overall project plans. As noted 

previously, the applicant needs to show 

through a functional assessment method 

that the project will result in a net 

increase in aquatic resource functions. 

As noted previously, Section 404(e) of 

the Clean Water Act provides the 

statutory authority for the issuance of 

general permits on a nationwide basis 

for any category of activities. As part of 

the establishment of the NWPs a 

decision document is prepared for each 

NWP along with a 404(b)(1) Guidelines 

analysis. Although analysis of offsite 

alternatives is not required in 

conjunction with general permits, each 

proposed project is evaluated for onsite 

avoidance and minimization, in 

accordance with general condition 20, 

Mitigation. This includes consideration 

of the availability of existing benches, 

roads, and fills that could be used 

instead of placing new fill in waters of 

the United States. 

Proposed NWP E is issued as NWP 49, 

with the addition of authorization for 

projects authorized under Title IV of 

SMCRA that include coal extraction. 

NWP 50. Underground Coal Mining 

Activities. This is a new NWP. Preconstruction notification is required for 

all activities proposed to be authorized 

by this permit. As with NWP 21, 

permittees must receive written 

authorization from the Corps before 

proceeding. Additionally, the projects 

must be authorized by OSM or by states 

with approved programs under Title V 

of SMCRA. 

Proposed Limits 

Numerous comments were received 

regarding the proposed 1⁄2 acre limit on 

this NWP. Many commenters stated that 

the 1⁄2 acre limit is too small to 

accommodate underground coal mining 

activities and attendant features and it 

should be deleted. One commenter 

recommended that any limits should be 

imposed regionally rather than 

nationally. 

One commenter stated that the 1⁄2 acre 

limit was too high and the 1⁄2 acre limit 

applied to small streams could result in 

the fill of long segments of streams 

without proper mitigation. Two 

commenters stated that if NWP 50 is 

issued, it must include stringent limits 

on the amount of stream that can be 

filled. One commenter stated that the 

NWP should be limited to activities that 

fill less than 300 feet of streams and 

should not be used in watershed where 

the cumulative amount of filled streams 

is already likely causing more than 

minimal harm. 

In consideration of the comments 

received, we have decided not to 

include the 1⁄2-acre limit. This permit 

replaces the 2002 version of NWP 21 for 

underground coal mining activities. The 

new NWP 21, which continues 

authorization for surface coal mining 

activities, does not include an acreage 

limit. Instead, NWP 21 relies on the 

SMCRA permitting process in 

combination with an enhanced preconstruction notification requirement 

which requires that permittees wait for 

written verification from the Corps 

before beginning their projects, even if 

the pre-construction notification review 

takes more than 45 days. After further 

consideration, we have determined that 

the same logic that applies to NWP 21 

also applies to NWP 50, and so have 

adopted similar requirements with 

respect to limits and verification. Thus, 

the 1⁄2 acre limit has been dropped, and 

permittees must wait for written 

verification from the Corps before 

proceeding. 

Pre-Construction Notification 

Four commenters recommended that 

applicants should be required to receive 

written authorization prior to 

commencing the activity. As noted 

above, the Corps has now adopted this 

requirement for this permit and dropped 

the 1⁄2 acre threshold. This requirement 

is necessary to give the district engineer 

adequate time to determine whether or 

not to assert discretionary authority and 

require an individual permit if the 

impacts of the proposed activity are 

more than minimal, either individually 

or cumulatively. 

Use of NWP 21 for Underground Mining 

Concerns were expressed by several 

commenters regarding the continued 

use of NWP 21 to authorize 

underground mining activities. These 

commenters requested clarification 

regarding this issue. One commenter 

noted that if NWP 21 could not be used 

for underground mining then most 

underground mine discharges would 

require an individual permit. One 

commenter expressed concerns 

regarding the use of NWP 21 for coal 

preparation and processing activities 

outside of the mine site. The commenter 

noted that preparation activities were 

not part of a surface coal mining project. 

The Corps envisions that activities 

that are not part of the underground 

mine site, which are outside the SMCRA 

permit area, can be authorized by NWP 

21 if they met the conditions for its use. 

We note that many processing plants 

serve both underground and surface 

mine sites, some at considerable 

distance, and that construction of such 

plants does not involve underground 

disturbances in the way that 

underground mining does. Thus we 

believe it appropriate to continue 

allowing NWP 21 to authorize such 

activities. We believe the changes 

discussed above to NWP 50 address the 

concern that, under the proposed 

version of the permit, many 

underground coal mining activities 

would have required an individual 

permit. There is no longer an acreage 

limit on the use of this permit, although 

it can only be used to authorize 

activities which the district engineer has 

determined will have no more than 

minimal adverse effects, both 

individually and cumulatively, and only 

after the district engineer has notified 

the operator in writing that use of this 

NWP is authorized. 

Minimal Adverse Impacts 

Many commenters were opposed to 

issuance of this NWP. They stated that 

general permit procedures were 

inappropriate for such large scale 

activities and that these types of 

activities seemed to demand a thorough 

review, public notice, and an 

alternatives and minimization analysis. 

One commenter stated that the Clean 

Water Act does not allow the Corps to 

issue general permits on the basis that 

compensatory mitigation will reduce net 

adverse effects to a minimal level. Two 

comments stated that NWPs can only be 

used for activities that cause minimal 

environmental effects both individually 

and cumulatively, and if impacts are 

more than minimal, the project requires 

an individual permit with site-specific 

analysis and public comment. Several 

commenters stated that coal mining 

results in significant environmental 

impacts and degradation of streams in 

Appalachia. 

The Corps believes that a careful casespecific determination of impacts is 

necessary for this NWP. The preconstruction notification process, along 

with the requirement for written 

verification from the Corps, will allow 

the district engineer to determine if the 

impacts of the proposed activity are no 

more than minimal, individually and 


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cumulatively, or whether an individual 

permit is required. Furthermore, we 

believe that the Corps can rely on 

mitigation in making a minimal adverse 

environmental effects determination. 

We believe that an assessment of 

individual and cumulative impacts 

cannot be made on a national level, 

because the functions and values of 

aquatic resources vary widely across the 

country. Assessment of cumulative 

impacts is more appropriately 

conducted by Corps districts on a 

watershed basis, based on regional and 

local conditions and procedures. We 

believe our process for this NWP 

ensures that activities authorized by the 

NWP result in no more than minimal 

adverse impacts to the aquatic 

environment because each project is 

reviewed on a case-by-case basis and the 

district engineer either makes a minimal 

impacts determination on the project or 

asserts discretionary authority and 

requires an individual permit. 

Additionally, as noted above, division 

engineers can add regional conditions to 

any NWP to further restrict the use of 

the NWP to ensure that the NWP 

authorizes only activities with no more 

than minimal adverse effects on the 

aquatic environment in a particular 

watershed or other geographic region. 

Each district tracks losses of waters of 

the United States authorized by 

Department of the Army permits, 

including verified NWPs, as well as 

compensatory mitigation achieved 

through aquatic resource restoration, 

creation, and enhancement. 

Furthermore, as with NWP 21, all 

activities authorized by this permit 

require authorization under SMCRA, 

and the SMCRA analysis, 

documentation and process 

requirements largely substitute for the 

analysis, documentation and process 

requirements of an individual permit. 

This is not to say that discharges related 

to coal mining and their impacts on 

aquatic resources do not require 

independent review and authorization 

by the Corps with respect to the 

requirements of the CWA, but the Corps 

believes that the analytical and process 

requirements can be streamlined by 

relying on the SMCRA process to the 

extent appropriate. Where the district 

engineer determines that these process 

requirements are not adequate for a 

particular project, he or she will require 

an individual permit. 

404(b)(1) Guidelines 

Several commenters stated that any 

proposed disturbance to waters to 

support coal processing or underground 

coal mining activities should be subject 

to the Section 404(b)(1) Guidelines, and 

that alternatives that do not result in 

impacts to waters of the United States 

are available. 

As noted previously, Section 404(e) of 

the Clean Water Act provides the 

statutory authority for the issuance of 

general permits on a nationwide basis 

for any category of activities. As part of 

the establishment of the NWPs a 

decision document is prepared for each 

NWP along with a 404(b)(1) Guidelines 

analysis. Although analysis of offsite 

alternatives is not required in 

conjunction with general permits, each 

proposed project is evaluated for onsite 

avoidance and minimization, in 

accordance with GC 20. This includes 

consideration of alternatives that do not 

result in impacts to waters of the United 

States. 

One commenter stated that it was a 

duplication of effort to have a review of 

the applicants’ reclamation plan. 

The Corps understands coal mining is 

covered by many environmental 

regulations, however the Corps has 

determined that SMCRA does not 

currently adequately address impacts to 

the aquatic environment as required 

under Section 404 of the CWA. 

Therefore this NWP does not duplicate 

the SMCRA permit process but does rely 

on it for information used in the 

analysis. The Corps continues to work 

with the other agencies to avoid 

potential duplication of efforts. The 

reclamation plan can be used to 

consider proposed mitigation measures 

for the projects being proposed for 

authorization by NWP 50. This 

information will be used by the Corps 

in making a determination as to whether 

the impacts are no more than minimal. 

Scope of Analysis 

One commenter stated that there 

should be a way to figure out how to 

extract the coal and still protect the 

environment. Another commenter noted 

that the amount of earth moving by 

mining activities is sufficient by itself to 

demonstrate that environmental impacts 

of mining are significant. One 

commenter stated that the subsidence 

that may occur as a result of 

underground mining should be 

considered in determining the acreage 

impacts to waters for this NWP. One 

commenter noted that coal mining 

waste contains chemical components 

that are toxic to aquatic life and that 

waste impoundments may fail. The 

commenter believed that this justifies an 

independent review. One commenter 

stated that the ‘‘facing up’’ practice 

cannot be carved out from the full range 

of environmental impacts associated 

with underground mining operations 

and must be reviewed comprehensively 

and not piecemeal. 

The Corps evaluation of coal mining 

activities is focused on impacts to 

aquatic resources. Other impacts of coal 

mining are addressed under a separate 

Federal law, SMCRA. Such impacts, 

including those associated with 

reclamation operations, are 

appropriately addressed by OSM or the 

applicable state agency, if program 

delegation has occurred. To the extent 

that reclamation activities affect waters 

of the United States, these will be 

addressed in the Corps review and 

appropriate mitigation required. 

Similar in Nature 

Several commenters stated that slurry 

impoundments should not be allowed 

under NWPs, and that NWPs can only 

be issued for activities that are similar 

in nature. The Corps has determined 

that slurry impoundments are related to 

underground mining activities. The 

NWPs are issued in accordance with 

Section 404(e) of the CWA. NWPs 

authorize categories of activities that are 

similar in nature. The ‘‘similar in 

nature’’ requirement does not mean that 

activities authorized by an NWP must 

be identical to each other. We believe 

the ‘‘categories of activities that are 

similar in nature’’ requirement of 

Section 404(e) is to be interpreted 

broadly, for practical implementation of 

the NWP program. 

Mitigation 

Several commenters stated that the 

mitigation done for coal mining impacts 

is scientifically indefensible and, absent 

such mitigation, the projects authorized 

under NWP 50 have more than minimal 

adverse effect and are therefore not 

eligible for an NWP. They stated that 

current mitigation projects have so far 

been unsuccessful and referenced a 

court case in the Southern District of 

West Virginia (Ohio Valley 

Environmental Coalition v. Bulen), 

where they noted that a Corps official 

stated that he did not know of a single 

instance of successful headwater stream 

creation. Also, the commenters stated 

that the Corps did not include any 

specific guidelines for how to assess 

stream function in order to determine 

the adequacy of compensatory 

mitigation. They also stated that the 

Corps has not shown that mitigation 

will offset the impacts authorized under 

NWP 50 or that off-site enhancement of 

streams would fully compensate for 

functions of streams that are destroyed. 

Other commenters stated that the Corps 

mistakenly allows the mitigation 

requirements of SMCRA and state water 

quality laws to satisfy the independent 


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requirements of Section 404 of the Clean 

Water Act. They stated that allowing a 

permittee to claim a compensatory 

mitigation or reclamation activity 

already required under SMCRA as 

compensatory mitigation under the 

Clean Water Act is ‘‘double-counting’’

and improperly blurs the requirements 

of sequencing (i.e., avoidance, 

minimization, mitigation) imposed 

under the 404(b)(1) guidelines. Other 

commenters recommended that a 

mitigation ratio of at least 1:1 should be 

required in order to achieve no net loss, 

and that mitigation also should be 

required for potential, as well as actual, 

impacts. Several commenters stated that 

final reclamation of wetland habitat will 

most likely occur in the absence of 

required compensatory mitigation. 

In order to ensure that an activity 

results in no more than minimal adverse 

effects on the aquatic environment, the 

Corps will add permit conditions that 

require compensatory mitigation that 

meets specified success criteria. The 

Corps will generally require the 

permittee to monitor the mitigation site 

for five years and, if the mitigation site 

does not meet the success criteria at that 

time, remediation or additional 

mitigation will be required. This 

ensures that the authorized activity will 

not result in a net loss in aquatic 

functions. The Corps has increased its 

compliance efforts to ensure that 

projects authorized by DA permits are 

constructed as authorized and that 

mitigation is successful. 

We are currently developing new 

stream functional assessment protocols 

to identify and quantify the functions 

lost through authorized impacts and the 

functions gained or enhanced through 

mitigation. The Corps coordinates with 

the SMCRA and state resource agencies 

to achieve appropriate aquatic 

restoration on mine sites, which can 

reduce or eliminate the amount of offsite compensatory mitigation needed. 

The Corps does not consider this 

‘‘double-counting’’, because the areas 

restored are only counted once in the 

replacement of aquatic resource 

functions. As long as the functions lost 

as a result of the permitted activity are 

mitigated through the onsite restoration 

or enhancement, it does not matter if the 

restoration also meets other goals 

unrelated to the Section 404 impacts. 

General condition 20 establishes the 

framework for achieving no net loss of 

waters/wetlands, as well as the 

sequential review of mitigation 

approaches on-site. The Corps takes into 

account the fact that, in certain areas 

and circumstances, any Corps 

compensatory mitigation requirement 

may be fully encompassed or exceeded 

by requirements of others. As long as 

the impacts to the aquatic environment 

are fully mitigated, the Corps will not 

require additional compensation. 

Proposed NWP F is issued as NWP 50, 

with the modifications discussed above. 

General Conditions 

One commenter supported the 

proposed change to the ordering of the 

general conditions. One commenter said 

that the proposed changes to general 

conditions will reduce environmental 

protection. A commenter stated that 

temporary impacts should be addressed 

through a new general condition, 

instead of requiring separate 

authorization under NWP 33. 

The changes to the general conditions 

will help improve environmental 

protection, by providing clearer and 

more enforceable requirements for 

permittees. Department of the Army 

permits are required for temporary 

structures, work, or discharges into 

waters of the United States, including 

navigable waters, unless those activities 

are exempt from permit requirements. 

Therefore, those regulated activities 

cannot be authorized through a general 

condition. In some cases, temporary 

structures, work, or discharges 

associated with another permitted 

activity are included in the NWP 

authorization for that activity; in other 

cases temporary structures, work or 

discharges must be authorized 

separately under NWP 33. 

One commenter said that the 

proposed ‘‘Note’’ for the NWP general 

conditions should contain language 

requiring permittees to comply with 

regional conditions and state water 

quality standards. This commenter also 

requested that the word ‘‘should’’ be 

replaced with ‘‘must.’’

The proposed ‘‘Note’’ clearly states 

that permittees are required to comply 

with regional conditions and that 

permittees should check on the status of 

water quality certifications and Coastal 

Zone Management Act consistency 

determinations before using an NWP. 

We cannot require prospective 

permittees to contact district offices to 

obtain this information (hence we have 

not replaced ‘‘should’’ with ‘‘must’’) but 

we have clarified that individual 

certification is required in cases where 

prior certification for the NWP has not 

been received. Permittees may also be 

able to obtain information on regional 

conditions and the status of water 

quality certifications and Coastal Zone 

Management Act consistency 

determinations through the Internet or 

other sources. 

One commenter recommended adding 

a new general condition to address the 

downstream movement of substrate and 

wood. This general condition would 

require stream crossings, such as bridges 

and culverts, to allow downstream 

movement of substrate and wood during 

100-year flow events, as well as 

movement of wood from upstream 

segments to downstream segments. 

Another commenter suggested adding a 

new general condition to address 

adverse impacts from invasive species. 

We do not agree that it is necessary 

to add a new general condition, as there 

are other general conditions which 

already include adequate provisions to 

address this concern. General condition 

2, Aquatic Life Movements, states that 

no activity may substantially disrupt the 

necessary life-cycle movements of those 

species that normally migrate through 

the area. General condition 9, 

Management of Water Flows, states that, 

to the maximum extent practicable, the 

activity must not restrict or impede the 

passage of normal or high flows, unless 

the primary purpose is to impound 

water. In general, blockages caused by 

restricted movement of wood or 

substrate would violate these conditions 

and must be prevented. Further, the 

ability for division and district 

engineers to exercise discretionary 

authority or regionally condition 

proposed activities under an NWP are 

sufficiently to address any site-specific 

concerns related to blocked movement 

of wood and ensure that authorized 

activities result in minimal adverse 

effects on the aquatic environment. The 

Corps does not have the regulatory 

authority to prohibit the introduction of 

invasive species. Invasive species may 

become established in areas through 

many mechanisms, not just disturbances 

caused by construction activities 

authorized by NWPs and other Corps 

permits. Such a condition would also be 

unenforceable and therefore such a 

general condition would be contrary to 

33 CFR 325.4(a). 

A number of commenters objected to 

the removal of the phrase ‘‘including 

structures or work in navigable waters 

of the United States or discharges of 

dredged or fill material’’ from text of 

certain general conditions. One 

commenter asked if removal of that 

phrase from those general conditions 

would reduce protection of aquatic 

resources. 

The removal of that language will not 

affect protection of waters of the United 

States. The stricken language was 

considered redundant as it simply refers 

to the general types of activities 

regulated under sections 10 and 404. 


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General Conditions 

GC 1. Navigation. We proposed to 

modify this general condition to require 

permittees to install any safety lights 

and signals prescribed by the U.S. Coast 

Guard. We also proposed to modify this 

general condition to notify permittees 

that they may be required to remove 

structures or work that cause 

unreasonable obstruction to navigation. 

One commenter supported the 

requirement concerning safety lights 

and signals. One commenter said that 

the Federal government should bear the 

financial costs for the removal of 

structures or work it authorized. One 

commenter stated that the Federal 

government itself could be a permittee 

and be required to remove the structure 

or work at the Federal government’s 

expense. One commenter said that this 

general condition should also include 

waters determined by states to be 

navigable waters. 

There may be cases where activities 

authorized by Department of the Army 

permits interfere with navigation or an 

existing or future operation of the 

United States and need to be removed. 

The cost of removal is the responsibility 

of the permittee, even in cases where 

the permittee is the Federal government. 

If there is any question as to whether or 

not a particular activity or structure will 

interfere with navigation, the permittee 

should check with the Coast Guard 

before beginning the activity. Adverse 

effects to navigable waters identified by 

states that are not navigable waters of 

the United States should be addressed 

by state regulatory programs. The Corps 

lacks the authority to enforce state laws 

and regulations for state navigable 

waters. 

The general condition is adopted as 

proposed. 

GC 2. Aquatic Life Movements. We 

proposed to modify this general 

condition by adding the phrase ‘‘if 

known’’ before ‘‘necessary life cycle 

movements’’ because those life cycle 

movements that are important are not 

always well understood for indigenous 

aquatic species. The intent of this 

general condition is to ensure that the 

necessary movements of aquatic species 

are not substantially disrupted. 

Many commenters expressed 

opposition to the proposed modification 

and recommended removing the phrase 

‘‘if known.’’ They stated that the lack of 

knowledge concerning aquatic life 

movements should not be construed as 

authorization to allow disruption of 

aquatic life cycle movements. One 

commenter supported the proposed 

modification, and also recommended 

adding ‘‘at the time of the permit 

application, if known, or if documented 

at the time of application.’’ to this 

general condition. 

Activities authorized by NWPs should 

not substantially disrupt the necessary 

life cycle movement of aquatic species, 

and the absence of species-specific 

information does not mean measures 

cannot be taken to prevent unnecessary 

obstructions to those movements. Even 

if the necessary life cycle movements 

are not known, inferences can be made 

to help ensure that those movements 

can continue. Those inferences can be 

based on general considerations of the 

mitigation measures necessary to ensure 

that adverse impacts to aquatic life 

movements are minimized to the 

maximum extent practicable. For 

example, properly sized culverts that 

are installed to retain low flow 

conditions will help ensure that life 

cycle movements will continue. 

Therefore, we are removing the phrase 

‘‘if known’’ from this general condition 

to allow district engineers to continue to 

use their judgment, so that adverse 

effects to aquatic life movements are 

minimized, even if the necessary life 

cycle movements are not known, but 

can be generally inferred. 

Two commenters requested 

clarification of the term ‘‘substantially’’

as used in this general condition. One 

commenter said that this term results in 

too high a threshold for the disruption 

of aquatic life movement. One 

commenter stated that aquatic life 

movement should be reviewed using 

hydraulic analyses performed for the 

range of flows expected after a basin is 

fully developed. Another commenter 

said that this general condition should 

require stream crossings to be 

constructed with bottom elevations 

below the normal substrate grade to 

avoid creating improper elevations or 

barriers that may substantially disrupt 

aquatic life movements. This 

commenter also recommended 

modifying this general condition to 

prohibit changes to stream morphology 

that could substantially interfere with 

aquatic life movements. 

In general, activities in waters of the 

United States authorized by NWPs are 

likely to result in some disruption of 

necessary life cycle movements of 

aquatic species, since we are 

authorizing discharges of dredged or fill 

material into those waters or structures 

or work in navigable waters of the 

United States. The word ‘‘substantially’’

supports the requirement that NWPs 

authorize only those activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment, while recognizing 

that some disruption may occur. Some 

disruptions to aquatic life movement are 

measurable but not substantial, and may 

be acceptable during construction or 

during natural seasonal events such as 

floods, winter ice conditions, or during 

construction conducted during dry 

seasons. It is not practicable, 

appropriate, or necessary to conduct 

hydrologic analyses for each NWP 

activity that has the potential to disrupt 

life cycle movements, based on the 

projected development for a watershed. 

Compliance with this general condition 

is to be assessed on a case-by-case basis, 

through available information or general 

knowledge of aquatic life movements. 

The current language in the general 

condition, especially the requirement to 

install culverts to maintain low flow 

conditions, is sufficient to ensure that 

stream crossings do not substantially 

disrupt aquatic life movements. This 

general condition, as well as the 

requirements of general condition 9, 

Management of Water Flows, will help 

ensure that NWP activities result only in 

minimal adverse effects to the 

movement of aquatic life via streams. 

The general condition is adopted, 

with the modification discussed above 

GC 3. Spawning Areas. We proposed 

to modify this general condition by 

removing language describing the 

general types of activities authorized by 

NWPs under sections 10 and 404. 

One commenter stated that not 

enough protection is provided since 

avoidance is only necessary to the 

maximum extent practicable. One 

commenter requested a definition of the 

term ‘‘important spawning area.’’ One 

commenter said that this general 

condition should not apply to NWPs 27 

or 48 because shellfish seeding can 

provide and/or increase availability of 

spawning habitat. 

The removal of language describing 

the general applicability of NWPs will 

not affect protection of waters of the 

United States. This general condition 

applies to all NWPs. The phrase ‘‘to the 

maximum extent practicable’’ is 

necessary since some NWP activities 

may be time-sensitive and it is not 

possible to completely avoid activities 

in spawning areas. Since the NWPs 

authorize activities that have minimal 

adverse effects on the aquatic 

environment, some NWP activities may 

be conducted in spawning areas. 

Identification of important spawning 

areas is more appropriately addressed 

through either the regional conditioning 

processes or through the assessment of 

site-specific characteristics during the 

review of pre-construction notifications. 

The general condition is adopted as 

proposed. 


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GC 4. Migratory Bird Breeding Areas. 

We proposed to modify this general 

condition to cover migratory birds 

generally, not just migratory waterfowl. 

We also proposed to remove language 

describing the general types of activities 

authorized by NWPs under sections 10 

and 404. 

One commenter said that the 

proposed modification would further 

restrict the use of the NWPs in 

wetlands. Another commenter asked 

how the change would affect nonwaterfowl migratory birds in cases 

where their habitat requirements are 

different than the habitat requirements 

of waterfowl. One commenter fully 

supported the inclusion of migratory 

birds but requested a national no-work 

timing window in breeding areas from 

March 1 to July 15 to reduce uncertainty 

associated with the phrase ‘‘to the 

maximum extent practicable.’’ Another 

commenter indicated that this general 

condition should prohibit haying or 

grazing during the nesting season unless 

an emergency is declared. One 

commenter said that the proposed 

changes do not comply with the 

Migratory Bird Treaty Act and suggested 

that breeding areas should ‘‘be avoided 

to the maximum extent practicable to 

assure minimal adverse impact on 

migratory birds and their breeding 

areas.’’ This commenter asserted that 

authorized activities under any NWP 

must comply with the Migratory Bird 

Treaty Act. This commenter also urged 

expansion of the general condition to 

include protection of Important Bird 

Areas, which is an initiative by nongovernmental entities to protect avian 

species of conservation concern. 

Another commenter said that this 

general condition should also state that 

the take of migratory birds, their eggs, 

nests, or parts is not allowed under the 

Migratory Bird Treaty Act without a 

permit. 

Aquatic resources provide a diverse 

variety of breeding habitats for a wide 

variety of migratory avian species. The 

replacement of ‘‘waterfowl’’ with 

‘‘migratory birds’’ will help reduce 

adverse impacts to aquatic habitats that 

are breeding areas of all migratory birds, 

not just waterfowl. It is not practicable 

to identify a uniform window of 41⁄2

months during which no activities in 

any habitat potentially used as breeding 

areas by migratory birds is allowed. 

Furthermore, breeding patterns and 

seasons vary by region. Time-of-year 

restrictions to protect breeding areas are 

thus more appropriately addressed 

through regional conditions imposed by 

division engineers or special conditions 

added to NWP authorizations by district 

engineers. It would not be appropriate 

to amend this general condition to 

prohibit haying or grazing during 

nesting seasons for migratory birds, 

since the Corps cannot enforce such a 

provision. 

The applicability of the Migratory 

Bird Treaty Act is addressed by 

Executive Order 13186, 

‘‘Responsibilities of Federal Agencies to 

Protect Migratory Birds,’’ which was 

issued on January 10, 2001. This 

Executive Order does not apply to 

Department of the Army permits. 

Responsibility for complying with 

requirements of the Migratory Bird 

Treaty Act lies with the permittee, but 

this responsibility is independent of the 

Department of the Army permit. The 

provisions of the Migratory Bird Treaty 

Act are implemented by the U.S. Fish 

and Wildlife Service through the 

issuance of take permits under 

appropriate circumstances. It would not 

be appropriate to modify this general 

condition to include an explicit 

reference to Important Bird Areas, 

though to the extent that they are 

encompassed by the phrase, 

‘‘waters...that serve as breeding areas for 

migratory birds,’’ they are already 

covered. There is no Federal statute or 

authority for establishing these areas. 

We believe the general condition as 

written is adequate to protect migratory 

birds. 

The general condition is adopted as 

proposed. 

GC 5. Shellfish Beds. We proposed to 

remove language describing the general 

types of activities authorized by NWPs 

under sections 10 and 404. We also 

proposed to add proposed NWP D, 

Commercial Shellfish Aquaculture 

Activities to the exception in this 

general condition. 

One commenter stated that ‘‘areas of 

concentrated shellfish populations’’

should be defined. One commenter said 

that the general condition is too 

restrictive and should instead provide 

the district engineer with discretion to 

prohibit an activity that may have a 

deleterious effect on shellfish. 

It would be inappropriate to define 

the term ‘‘areas of concentrated shellfish 

populations’’ at the national level. Such 

determinations should be made on a 

case-by-case basis, and take into account 

the characteristics of the shellfish 

species inhabiting the waters in which 

the NWP activity is located. Criteria for 

identifying areas of concentrated 

shellfish populations may vary by 

species and region. With the exception 

of NWPs 4 and 48, the NWPs should not 

authorize activities in concentrated 

shellfish beds to ensure that the 

activities authorized by NWPs result in 

minimal adverse effects on the aquatic 

environment. However, the district 

engineer may determine that this 

general condition does not apply in 

situations where a specific NWP activity 

will have little or no adverse effect on 

areas of concentrated shellfish 

populations. The reference to NWP D 

has been changed to NWP 48, to reflect 

the number assigned to that new NWP. 

This general condition is adopted 

with the modification discussed above. 

GC 6. Suitable Material. We proposed 

to modify this general condition by 

removing language describing the 

general types of activities authorized by 

NWPs under sections 10 and 404. 

One commenter suggested the general 

condition contain a list of suitable 

materials rather than a list of unsuitable 

materials. One commenter said that 

asphalt should be removed from the list 

of examples in the general condition 

because research has shown that cured 

asphaltic concrete is inert. One 

commenter asserted that the general 

condition does not go far enough to 

protect aquatic resources, and 

recommended changing the text to 

prohibit ‘‘unacceptable chemical 

pollution’’ instead of requiring material 

to be free of toxic pollutants in toxic 

amounts. This commenter also said that 

the use of substances such as creosote 

and pentachlorophenol in open waters 

should be prohibited. One commenter 

suggested that the general condition 

contain language that the fill material 

must be obtained from an upland source 

and require it to be sufficiently sized 

and shaped to resist erosion for normal 

and expected high flows. 

We do not agree that it is necessary 

to further define what constitutes 

‘‘suitable material’’ for the purposes of 

this general condition. It is impractical 

to provide a comprehensive list of 

unsuitable materials. If there are 

questions concerning the suitability of a 

particular material, the permittee should 

contact the appropriate Corps district 

office and ask if that material is 

considered suitable for the purposes of 

this general condition. We continue to 

believe that ‘‘asphalt’’ is an unsuitable 

material for use in waters of the United 

States. Use of substances such as 

creosote and pentachlorophenol is 

prohibited by general condition 6, 

Suitable Material, if they would be 

released into the environment in toxic 

amounts. It is inappropriate to limit fill 

material only to material obtained from 

uplands, since material excavated from 

aquatic environments may also be 

suitable. Other general conditions, such 

as general conditions 12 (Soil Erosion 

and Sediment Controls) and 9 

(Management of Water Flows) address 


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requirements for withstanding water 

flows. 

This general condition is adopted as 

proposed. 

GC 7. Water Supply Intakes. We 

proposed to modify this general 

condition by removing language 

describing the general types of activities 

authorized by NWPs under sections 10 

and 404. We also proposed to add the 

phrase ‘‘or improvement’’ to account for 

adjustments of the public water supply 

intake structure that may be necessary 

to maintain or improve levels of service. 

One commenter supported the 

proposed change. One commenter stated 

the general condition is overly 

restrictive and that the standard should 

be that activities that are likely to cause 

an impact to a public water supply 

intake should be prohibited. One 

commenter requested we define 

‘‘proximity.’’

This general condition is not too 

restrictive, given the importance of 

water supply intakes for public, 

commercial and industrial use. District 

engineers will determine on a case-bycase basis what is necessary to comply 

with this general condition. We believe 

the term ‘‘proximity’’ is flexible enough 

to allow district engineers to determine 

that activities that will not adversely 

impact a public water supply intake are 

not in proximity to the intake. The term 

‘‘proximity’’ should be defined on a 

case-by-case basis, after taking into 

account site characteristics and the 

nature of the waterbody and activity. 

This general condition is adopted as 

proposed. 

GC 8. Adverse Effects from 

Impoundments. We proposed to modify 

this general condition by removing 

language describing the general types of 

activities authorized by NWPs under 

sections 10 and 404. 

One commenter recommended 

amending the language to prohibit the 

use of the NWPs in waters accessible to 

anadromous salmonids. 

While the Corps recognizes the 

importance of protecting aquatic 

species, including salmonids, it would 

not be practicable to prohibit use of 

NWPs in all waters accessible to 

anadromous salmonids. Restricting or 

prohibiting the use of NWPs in waters 

inhabited by anadromous salmon 

species is more appropriately addressed 

through regional conditions imposed by 

division engineers, or assertion of 

discretionary authority by district 

engineers. 

This general condition is adopted as 

proposed. 

GC 9. Management of Water Flows. 

We proposed to modify this general 

condition by simplifying the language to 

require that permittees maintain the preconstruction course, condition, 

capacity, and location of open waters to 

the maximum extent practicable. 

Exceptions to this requirement may be 

made if the primary purpose of the NWP 

activity is to impound water or if the 

activity benefits the aquatic 

environment. 

One commenter supported the 

proposed modification. One commenter 

supported the specific exception for 

impoundment activities, and two 

commenters supported the language that 

allows stream modifications if there are 

positive benefits to aquatic resources, 

such as for stream restoration projects. 

Two commenters supported the 

language requiring compliance only to 

the maximum extent practicable. One 

commenter said that the practicability 

considerations in this general condition 

should take into account sound 

engineering practices and project 

economics. 

The term ‘‘practicable’’ is defined in 

the ‘‘Definitions’’ section of the NWPs. 

Costs, as well as existing technology and 

logistics, are considered when making 

practicability determinations. 

One commenter stated that this 

general condition should not apply to 

ephemeral streams. One commenter said 

that this general condition should be 

modified to prohibit dewatering 

between October 1 and March 31 to 

protect hibernating species in the 

substrate of waterbodies. Another 

commenter requested that the general 

condition retain language stating that 

detailed studies or monitoring would 

not be required to ensure compliance, 

and that the Corps would normally 

defer to local and state officials on the 

issue. Another commenter said that this 

general condition provides only limited 

value because it is qualitative and does 

not require specific written 

documentation and assurances 

regarding how the requirements are met. 

One commenter stated the requirements 

of this general condition are 

inappropriate and hazardous with 

respect to regulation of stormwater 

management facilities. One commenter 

said that this general condition should 

require NWP activities to accommodate 

the passage of large woody debris and 

stream bed load, especially for stream 

crossing projects. 

This requirement must apply to 

ephemeral streams, because they may 

carry substantial flow during storm 

events. Time-of-year restrictions on 

dewatering activities are more 

appropriately addressed through the 

regional conditioning process or 

through special conditions added to 

NWP authorizations by district 

engineers. We do not believe it is 

necessary to retain language stating that 

detailed studies or monitoring are not 

required to ensure compliance with this 

general condition, though it is not our 

intent to require such studies where 

compliance can be based on reasonable 

assumptions about flow. District 

engineers will use their judgment to 

determine whether a particular activity 

complies with this general condition. In 

order to ensure that this general 

condition does not unduly restrict the 

construction and maintenance of storm 

water management activities, we have 

clarified that it does not apply to 

activities that have a primary purpose of 

managing storm water flows. The issue 

of maintaining passage of large woody 

debris in streams is more appropriately 

addressed through regional conditions, 

in areas where changes to the movement 

of large woody debris may result in 

more than minimal adverse effects on 

the aquatic environment. Compliance 

with the requirements of this general 

condition will generally accommodate 

the movement of bed load along a 

stream channel. 

This general condition is adopted as 

proposed. 

GC 10. Fills Within 100–Year 

Floodplains. We proposed to modify 

this general condition by simply 

requiring permittees to comply with 

applicable state or local floodplain 

management requirements that have 

been approved by the Federal 

Emergency Management Agency 

(FEMA). 

Several commenters supported the 

general condition. One commenter said 

that the proposed change may cause a 

slight increase in case-by-case review 

and assertion of discretionary authority. 

This commenter also requested that the 

Corps provide guidance to assure 

consistent implementation of this 

general condition. A number of 

commenters stated that local 

governments are better able to 

implement the FEMA program. Two 

commenters favored the proposed 

change because it avoids duplication 

with other regulatory agencies, and 

another commenter stated that it is a 

simple and straightforward requirement. 

One commenter said that the general 

condition will create an incentive to 

design projects that reduce impacts to 

waters of the United States to qualify for 

an expedited NWP authorization. 

We do not agree that this general 

condition will increase case-by-case 

reviews and the number of times 

discretionary authority is exercised. The 

version of this general condition that 

was adopted in 2002 prohibited the use 

of NWPs 39, 40, 42, and 44 to authorize 


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permanent, above-grade fills in waters 

of the United States within mapped 

floodways. Those activities required 

authorization by regional general 

permits or individual permits. The 

general condition adopted today allows 

those activities to be authorized by 

NWP, provided the activities comply 

with applicable state and local 

floodplain management requirements 

and the district engineer determines, 

after reviewing the pre-construction 

notification, that the individual and 

cumulative adverse effects on the 

aquatic environment and other public 

interest review factors are minimal. We 

continue to support efforts that reduce 

duplication with other agencies. 

Many commenters objected to the 

general condition and requested that the 

Corps retain the previous floodplain 

prohibitions for NWPs 39, 40, 42 and 

44. They said that the Corps has an 

independent obligation and role in 

protecting waters of the United States. 

One commenter stated no fills should be 

permitted within the 100-year 

floodplain in specific watersheds. One 

commenter said that employing the use 

of discretionary authority on a case-bycase basis will produce uncertainty for 

prospective permittees. 

We do not believe it is appropriate to 

use the Section 404 program to restrict 

activities in flood plains over and above 

the requirements of FEMA-approved 

state and local floodplain management 

programs, except in specific cases where 

the district engineer determines that an 

activity would result in more than 

minimal adverse effects. This general 

condition, in conjunction with reviews 

of pre-construction notifications, will 

provide sufficient protection to 

floodplain values that is appropriate to 

the scope of the Corps regulatory 

authorities and implementing 

regulations. This general condition will 

also support the application of FEMAapproved state or local floodplain 

management requirements that are 

established to reduce flood hazards. 

Restricting or prohibiting development 

of 100-year floodplains is more 

appropriately addressed through the 

land use planning and zoning 

authorities granted to state and local 

governments. The Corps considers 

impacts to floodplains and flood 

hazards during its review of preconstruction notifications. If the 

proposed activity will result in more 

than minimal adverse effects to 

floodplains or increases in flood 

hazards, the district engineer will 

exercise discretionary authority and 

require an individual permit for the 

proposed activity. 

We disagree that the pre-construction 

notification review process will produce 

more uncertainty for permittees. If the 

proposed work will have minimal 

adverse effects on the aquatic 

environment and other public interest 

review factors, such as floodplain values 

and flood hazards, the activity can be 

authorized by the applicable NWP. One 

benefit of the modified general 

condition is that it applies to all NWP 

activities, not just NWPs 39, 40, 42, and 

44. 

One commenter indicated that FEMA 

regulations are only designed to assure 

development is reasonably safe from 

flooding not to protect the quality and 

quantity of downstream waterways or 

the aquatic resources associated with 

the floodplain and downstream water 

segments. Two commenters stated that 

floodplain managers will not receive 

pre-construction notifications and 

therefore they will not be aware of 

floodplain development activities 

because they will no longer receive 

public notices for these individual 

permits. Two commenters said that the 

National Flood Insurance Program 

standards are insufficient to minimize 

flood hazard and floodplain impacts. 

One commenter argued that the Corps 

should strengthen and not weaken the 

floodplain protections that are outlined 

in 33 CFR 320.4(l)(2) and Executive 

Order 11988, Floodplain Management. 

One commenter concluded that the 

NWPs will have more than minimal 

impacts because of the proposed 

modification of this general condition. 

When reviewing pre-construction 

notifications, district engineers will 

assess adverse effects to the aquatic 

environment, including impacts to 

aquatic resources located within 100- 

year floodplains and downstream 

waterways. General condition 9 requires 

permittees, to maintain to the maximum 

extent practicable, the pre-construction 

course, condition, capacity, and location 

of open waters. State water quality 

certifications ensure that NWPs do not 

authorize activities that degrade 

downstream water quality. Floodplain 

development activities are already 

thoroughly reviewed by state and local 

governments under their planning and 

zoning authorities, especially in those 

floodplains that consist mostly of 

uplands, where development is more 

likely to occur. The Federal Emergency 

Management Agency is designated 

through E.O. 11988 as the lead Federal 

agency for floodplain management, and 

we are deferring to their program 

requirements for floodplain 

management. The proposed 

modification of this general condition 

complies with 33 CFR 320.4(l)(2). The 

modification of this general condition 

will not cause the NWP program to 

result in more than minimal individual 

and cumulative adverse environmental 

effects. 

One commenter said that this general 

condition should be modified to require 

documentation of compliance with 

FEMA minimum standards by a 

licensed professional engineer, and 

require consultation with resource 

agencies. One commenter suggested 

modifying this general condition to 

require prospective permittees to 

demonstrate they have applied the 

National Environmental Policy Act 

process and to justify ‘‘no reasonable 

option’’ exists before filling within the 

base floodplain. One commenter noted 

that not all floodplains have been 

mapped and as such they do not fall 

under authority of a local government. 

Two commenters requested clarification 

on how the general condition will be 

applied when a 100-year floodplain is 

identified by an engineering study but 

FEMA approved management 

requirements are absent. 

Requiring documentation of 

compliance with FEMA-approved 

standards is unnecessary for the 

purposes of the NWPs, because such 

requirements are more appropriately 

addressed through state and local 

construction authorizations. If a 

separate National Environmental Policy 

Act process is applicable for a particular 

development activity, then the lead 

Federal agency will conduct that 

process. For the purposes of the NWPs, 

compliance with the National 

Environmental Policy Act is achieved 

through the decision documents issued 

for each NWP. This general condition 

does not apply to 100-year floodplains 

where FEMA-approved state or local 

floodplain management requirements 

have not been established. In general, 

such floodplains have not been mapped. 

In such areas, district engineers will 

review pre-construction notifications 

and assess the adverse effects on 

floodplains and flood hazards to the 

extent practicable, and add special 

conditions as appropriate. 

Two commenters requested 

clarification of the mechanism and 

documentation necessary to complete 

the public interest evaluation. One 

commenter asked if this process is 

expected to increase the amount of time 

needed to complete the review of a preconstruction notification. 

The general condition simply requires 

permittees to comply with applicable 

FEMA-approved state or local 

floodplain management requirements. It 

does not require separate 

documentation to be provided to the 


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district engineer with a pre-construction 

notification. The modification of this 

general condition is not expected to 

cause an increase in the amount of time 

to prepare or review a pre-construction 

notification. 

This general condition is adopted as 

proposed. 

GC 11. Equipment. We proposed to 

modify the general condition to include 

mudflats, in addition to wetlands. 

One commenter suggested changing 

this general condition to require heavy 

equipment to provide low ground 

pressure, to further minimize soil 

disturbance. 

We do not agree that this change is 

necessary, because the general condition 

states that other measures can be used 

to minimize soil disturbance. This 

general condition is adopted as 

proposed. 

GC 12. Soil Erosion and Sediment 

Controls. We did not propose any 

changes to this general condition. 

One commenter expressed support for 

this general condition, stating that it 

provides sufficient flexibility to address 

emergency situations, public safety or 

infrastructure repairs, or situations 

where it is necessary to work in higher 

water conditions in order to adjust 

restoration design to meet on-site 

hydrologic and fluvial geomorphic 

conditions. One commenter said that 

the term ‘‘low-flow’’ is not adequately 

defined, and therefore it provides 

inadequate protection of the aquatic 

environment. One commenter suggested 

modifying this general condition to 

require permittees to follow state and/or 

local storm water sediment control 

requirements. 

Determinations of low-flow 

conditions will be made by district 

engineers on a case-by-case basis. We 

believe the condition provides sufficient 

protection for the aquatic environment. 

Appropriate soil erosion and sediment 

control measures may be established by 

different levels of government or 

different agencies, so it would be more 

effective to retain the present language. 

Such requirements are independently 

applicable in any case. 

This general condition is adopted as 

proposed. 

GC 13. Removal of Temporary Fills. 

We proposed to modify this general 

condition by replacing the phrase ‘‘their 

preexisting elevation’’ with ‘‘preconstruction conditions.’’

One commenter supported the 

proposed change. Four commenters 

objected to the proposed change, stating 

that the language implies that the site 

needs to be revegetated or mitigated. 

One commenter suggested defining 

‘‘temporary’’ as less than six months. 

One commenter recommended 

modifying the text of this general 

condition to recommend removal of 

temporary fills during dewatered or 

low-flow conditions. Another 

commenter said that this general 

condition should require filled areas to 

be restored, as much as possible, to the 

same elevation, contours, grade, 

substrate, vegetative composition, 

hydrology, and/or geomorphology. 

We agree that the proposed 

modification can be difficult to 

implement and enforce. For example, 

the proposed language implies that to 

return an area inhabited by trees to its 

pre-construction conditions, trees 

would have to be planted. Therefore, we 

have changed the phrase ‘‘preconstruction conditions’’ to ‘‘preconstruction elevations’’ to require that 

the permittee return the affected area to 

its previous elevations. We have also 

added a new sentence that requires the 

permittee to revegetate the affected area, 

as appropriate. A temporarily filled area 

that was previously vegetated must be 

planted with appropriate plant materials 

and allowed to grow back after the 

temporary fill is removed and the preconstruction elevations restored. In 

some cases, such as stream channels, it 

may be sufficient to simply remove 

temporary fills to satisfy this general 

condition. 

The general condition is adopted with 

the modifications discussed above. 

GC 14. Proper Maintenance. We did 

not propose any changes to this general 

condition. 

One commenter stated the Corps 

should require that a new stream 

crossing be constructed when a crossing 

requires two or more debris removal 

requests within 10 years. One 

commenter said that the general 

condition should be modified to require 

maintenance as necessary to ensure 

minimal impacts and public safety. One 

commenter stated that long-term 

maintenance of structures and/or fills 

should be evaluated during the permit 

process and authorized in the permit 

authorizing construction. 

We disagree with these suggested 

changes. We cannot condition the NWPs 

to require a permittee to install a new 

stream crossing if debris accumulates at 

a certain frequency. Activities 

authorized by NWPs must already result 

in minimal adverse effects on the 

aquatic environment, and it is not 

necessary to add such a requirement to 

this general condition. Maintenance of 

authorized activities may be conducted 

either under the Clean Water Act 

exemption at Section 404(f)(1)(B) or 

under NWPs 3, 31, or 35. 

The general condition is adopted as 

proposed. 

GC 15. Wild and Scenic Rivers. We 

did not propose any changes to this 

general condition. 

One commenter recommended 

expanding the prohibition to state wild 

and scenic and recreational river 

systems, and to any activities in rivers 

subject to the review of the National 

Park Service. One commenter expressed 

support for the general condition and 

recommended it be modified to require 

that the Federal agency with direct 

management responsibility for the river 

be contacted regarding the proposed use 

of an NWP and that the Corps receive 

a written statement from that agency 

regarding the effects the activity will 

have on the river. 

State wild and scenic rivers are more 

appropriately addressed through state 

laws, regulations, and programs. The 

general condition contains language 

requiring the appropriate Federal 

agency with direct management 

responsibility for the river to determine 

in writing that the proposed activity 

will not adversely affect that river’s 

designation. The Corps will not issue an 

NWP verification for an activity in a 

National Wild and Scenic River without 

the appropriate documentation. 

This general condition is adopted 

without change. 

GC 16. Tribal Rights. We did not 

propose any changes to this general 

condition. One commenter asked how 

the Corps will determine whether tribal 

rights are impacted, and if a tribal right 

is impaired. 

We cannot define a specific threshold 

to be used to determine compliance 

with this general condition. District 

engineers make these determinations on 

a case-by-case basis, through 

appropriate consultations with Indian 

tribes. 

This general condition is adopted 

without change. 

GC 17. Endangered Species. We 

proposed to modify this general 

condition by stating that no activity is 

authorized by NWP, if it ‘‘may affect’’ a 

listed species or critical habitat unless 

Section 7 consultation has been 

completed. We also proposed to state 

that district engineers will make ‘‘may 

affect’’ or ‘‘no effect’’ determinations 

and notify prospective permittees 

within 45 days of receipt of a complete 

pre-construction notification. 

Several commenters supported the 

proposed modifications of this general 

condition. One commenter 

recommended specifying the 

documentation that should be submitted 

with the pre-construction notification in 

circumstances when no listed species or 


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critical habitat will be affected. Two 

commenters requested that the 45 day 

time limit for notifying applicants of an 

effect determination be reduced to 30 

days. One commenter requested 

clarification on whether the Corps has 

45 days from submittal of the preconstruction notification or 45 days 

from receipt of a complete application, 

to notify the applicant of a ‘‘may effect’’

determination, and whether this will 

result in extra time to complete an 

NWP. 

This general condition specifies that 

permittees shall notify the Corps if any 

listed species or critical habitat might be 

affected or is in the vicinity of the 

project. If this does not apply, no 

additional information is required to be 

submitted. We believe that 45 days is a 

reasonable and practical deadline, and it 

is consistent with the pre-construction 

notification time frame. The general 

condition states that the Corps will 

notify the applicant within 45 days of 

receipt of a complete pre-construction 

notification. However, if the applicant 

has provided notification to the Corps of 

possible effects on listed species or 

critical habitat, the applicant must wait 

for a Corps determination of either ‘‘may 

affect’’ or ‘‘no effect’’, even if this takes 

more than 45 days. 

Several commenters expressed 

concern that requirement for Section 7 

consultation in the absence of a ‘‘no 

effect’’ determination would delay 

processing of pre-construction 

notifications, and that the requirement 

to wait for the Corps ‘‘no effect’’

determination increases the 

administrative burden and uncertainty 

for applicants. Several commenters 

recommended that, if an applicant does 

not hear from the Corps within 45 days, 

the applicant may treat the lack of 

response as a ‘‘no effect’’ determination 

and proceed with the NWP activity. 

Other commenters stated that the openended period for the Corps to resolve 

concerns about species could result in 

NWPs taking much longer to issue than 

45 days. 

The 45-day period is necessary to 

allow district engineers to review 

proposed NWP activities that require 

notification because federally-listed 

species or critical habitat might be 

affected or are in the vicinity of the 

project (see 33 CFR 330.4(f)(2)). During 

that 45 day period, the district engineer 

will determine if the proposed project 

will have ‘‘no effect’’ or ‘‘may affect’’

listed species or critical habitat. If the 

proposed activity may affect listed 

species or critical habitat, the 

prospective permittee cannot begin the 

activity until the Endangered Species 

Act requirements have been satisfied, 

even if 45 days have passed since the 

district received a complete preconstruction notification. Many ‘‘no 

effect’’ determinations do not take the 

full 45 days. We acknowledge that some 

NWP verification requests may take 

longer than 45 days, but the Corps is 

legally obligated to comply with the 

Endangered Species Act. The ESA 

requires Section 7 consultation for any 

activity authorized by a Federal agency 

unless that agency determines that the 

activity will have ‘‘no effect’’ on listed 

species. In cases where the permittee 

has determined that no listed species or 

critical habitat are in the vicinity of the 

project or might be affected by it, and 

thus has not notified the Corps of any 

possible effects, then (but only in such 

cases) the permittee does not have to 

wait for further confirmation of ESA 

compliance from the Corps. 

One commenter stated that the 

wording in the general condition differs 

from that in the Endangered Species Act 

and in the existing NWPs, as it applies 

the standard of ‘‘may affect’’ rather than 

‘‘takings’’ of listed species. In addition, 

without clear guidance, the ‘‘may effect’’

standard is likely to be applied 

inconsistently from district to district. 

Section 7 of the Endangered Species 

Act states that Federal agencies must 

consult with the U.S. Fish and Wildlife 

Service or the National Marine Fisheries 

Service if an activity ‘‘may affect’’ listed 

species or habitat. This language is 

virtually the same as that in the 2002 

NWPs, including the requirement that a 

permittee cannot begin work until 

notified by the Corps if the project 

might affect a listed species or critical 

habitat. 

One commenter recommended 

clarification of the terms ‘‘might be 

affected’’ and ‘‘may affect’’. 

As stated in the text of the general 

condition, the district engineer 

determines if an activity ‘‘may affect’’

listed species or critical habitat. A nonfederal permittee must notify the district 

engineer if listed species or critical 

habitat might be affected, so the district 

engineer can determine if the activity 

‘‘may affect’’ the habitat or species. We 

have modified the second sentence of 

paragraph (b) of this general condition 

by changing the word ‘‘may’’ to ‘‘might’’

in order to clearly distinguish the formal 

determination by the Corps (‘‘may 

affect’’ or ‘‘no effect’’) from the 

requirement on the applicant to notify 

the Corps where there is sufficient cause 

for concern to warrant a formal 

determination. This requirement applies 

if habitat or species is in the vicinity of 

the project or might be affected by it, or 

if the project is located in the habitat. 

One commenter recommended 

modifying this general condition to 

exempt activities that occur in the 

vicinity of free-swimming species from 

the pre-construction notification 

requirement, provided the activities 

include reasonable efforts to avoid 

physical contact with listed species. 

Any time a proposed NWP activity 

has the potential to affect listed species 

or critical habitat, the Corps must 

evaluate it and make a ‘‘no effect’’ or 

‘‘may affect’’ determination. This 

requirement cannot be waived for freeswimming species, although efforts 

taken to avoid physical contact with 

listed species might result in a 

determination that the activity will have 

‘‘no effect’’ on that species. Even in the 

case of a ‘‘may effect’’ determination, 

such efforts may help to expedite 

Section 7 consultation with the 

Services. 

One commenter suggested clarifying 

that the work or activities that are 

prohibited from commencing until the 

Corps has provided notification of 

compliance with the Endangered 

Species Act only refers to work in 

waters of the United States, not upland 

areas. Several commenters stated that 

language requiring applicants to notify 

the Corps if listed species or habitat is 

in the ‘‘vicinity’’ of the activity creates 

uncertainty and should be eliminated. 

District engineers must evaluate 

effects on listed species or habitat of any 

activity that is within the Corps’ scope 

of analysis under the Endangered 

Species Act. This might include some 

areas outside of waters of the United 

States. However, it is correct that a 

Section 404 permit is only required for 

discharges of dredged or fill material 

into waters of the United States. The 

Corps has no authority to prohibit 

activities that do not involve such 

discharges. However, an activity in an 

upland area that adversely affects a 

listed species may make it more difficult 

for the Corps to later determine that an 

associated discharge of dredged or fill 

material into waters of the United States 

has ‘‘no effect’’ and/or may complicate 

any Section 7 consultation that is 

subsequently required. While defining 

the ‘‘vicinity’’ of an activity might be 

difficult, the Corps believes it must 

retain the ability to evaluate the effects 

of projects on species that are nearby, 

mobile, or otherwise could be affected. 

Defining the appropriate vicinity will 

also depend on the natural history of the 

particular species. If there is any doubt, 

permittees should contact the Corps or 

the local office of the USFWS or NMFS 

for guidance. 

A couple of commenters stated that, 

as the U.S. Fish and Wildlife Service is 


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allowed to comment on coal mine 

permit applications during the Surface 

Mining Control and Reclamation Act 

(SMCRA) process, there is no need for 

consultation associated with Corps 

permits for coal mining. 

Section 7(a)(2) of the Endangered 

Species Act requires Federal agencies to 

consult with the Services to ensure that 

they are not undertaking, funding, 

permitting, or authorizing actions likely 

to jeopardize the continued existence of 

listed species or destroy or adversely 

modify designated critical habitat. This 

responsibility cannot be waived, unless 

another Federal agency is the lead 

agency for the project and conducts the 

required consultation. In cases where 

SMCRA is administered by a state 

agency, the Corps is required to conduct 

the necessary Federal consultation. 

Information obtained during other 

environmental reviews, including any 

comments made by the Services during 

the SMCRA process, is used by the 

Corps in evaluating the NWP. 

One commenter stated that neither 

applicants nor the Corps are adequately 

trained to make endangered species 

determinations and therefore the Corps 

should institute formal consultation for 

each proposed NWP activity. In 

addition, pre-construction notification 

thresholds should be eliminated or 

reduced so that applicants are not put 

in the position of deciding whether or 

not their project has impacts on 

protected species. 

Section 7 consultation is a 

cooperative effort involving affected 

parties engaged in analyzing effects 

posed by proposed actions on listed 

species or critical habitat(s). Many NWP 

activities result in ‘‘no effect’’ to listed 

species or critical habitat, so it is not 

necessary to conduct formal 

consultation for each NWP activity. The 

determination of jeopardy/no jeopardy 

is based on a careful analysis of the best 

available scientific and commercial 

data. The Corps is engaging with the 

Services on programmatic Section 7 

consultation for the NWPs, but projectspecific evaluations and consultation 

are still required to ensure that 

permitted activities do not jeopardize 

the continued existence of a listed 

species or critical habitat. The preconstruction notification thresholds for 

NWPs provide a balance between 

efficient authorization of activities that 

have minimal adverse environmental 

impact, and environmental protection, 

including protection of listed species 

and critical habitat. The requirement for 

prospective permittees to notify the 

district engineer if a listed species or 

critical habitat might be affected or is in 

the vicinity of the project provides a 

relatively low bar for notification to the 

Corps of potential effects, while not 

bogging down the NWP process in cases 

where the applicant has performed due 

diligence and determined that there are 

no listed species or critical habitat in 

the vicinity of the project. 

One commenter recommended that 

the general condition specify that the 

U.S. Fish and Wildlife Service or 

National Marine Fisheries Service has to 

make jeopardy determinations and that 

the Corps will initiate any required 

Section 7 consultation within 45 days of 

receiving a complete pre-construction 

notification. 

We do not agree that it is necessary 

to modify this general condition to state 

that the U.S. Fish and Wildlife Service 

or National Marine Fisheries Service 

will make jeopardy determinations. 

Those determinations will be made 

when they issue biological opinions in 

response to a request for Section 7 

consultation. The purpose of this 

general condition is to ensure 

compliance with the requirements of the 

Endangered Species Act, and to provide 

timely notification to prospective 

permittees, so that they do not begin 

work until the requirements of Section 

7 have been fulfilled. 

One commenter recommended that 

the prohibition on activities that 

adversely affect federally listed species 

should also apply to official state-listed 

endangered or threatened species. 

The Endangered Species Act only 

applies to Federally-listed species. 

States may impose their own 

restrictions or prohibitions on activities 

that affect state-listed species. 

One commenter suggested adding the 

word ‘‘negatively’’ to the second 

sentence of paragraph (a), to limit it to 

those activities that may negatively 

affect listed species or critical habitat. 

One commenter stated that this general 

condition should not apply to shellfish 

seeding activities authorized by NWPs 

27 or 48, since traditional shellfish 

seeding activities do not negatively 

affect listed species or their habitat. 

The term ‘‘may affect’’ comes from the 

ESA and is the statutory criterion for 

determining when Section 7 

consultation is required. Changing this 

language to only apply to negative 

effects would not be consistent with the 

Corps’ responsibilities under the 

Endangered Species Act. The general 

condition applies to all NWPs, to the 

extent that they have the potential to 

affect listed species or critical habitat. If 

an activity would not have an affect on 

listed species, no Section 7 consultation 

is required. The notification 

requirements in this general condition 

facilitate the Corps’ compliance with its 

Section 7 obligations. 

One commenter stated that many 

activities eligible for NWPs are covered 

under programmatic Section 7 

consultations. Therefore, it should be 

clarified that if a project falls within the 

scope of a program that has been 

reviewed and approved under Section 7 

consultation, then individual 

consultation is not required. One 

commenter recommended modifying 

this general condition to clarify the 

responsibilities of Federal permittees 

that use the NWPs. 

If Section 7 consultation has been 

completed for an activity, either 

programmatically or individually, the 

activity can be authorized under NWPs. 

This is implied in the statement that 

‘‘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.’’ We do not believe 

additional clarification is necessary. 

When submitting a pre-construction 

notification for an activity that may 

affect a listed species, the applicant 

should indicate if Section 7 consultation 

has already been conducted, the Federal 

agency conducting the consultation, and 

the outcome of the consultation. 

We have added a new paragraph to 

this general condition (paragraph (b)), to 

clarify that Federal agencies are to 

follow their own procedures for 

complying with the requirements of the 

Endangered Species Act, which is 

consistent with 33 CFR 330.4(f)(1). This 

paragraph also requires Federal 

permittees to provide appropriate 

documentation to the district engineer 

to demonstrate compliance with those 

requirements. 

This general condition is adopted, 

with the modifications discussed above. 

GC 18. Historic Properties. We 

proposed to modify this general 

condition by removing the reference to 

Appendix C of 33 CFR part 325 and 

stating that the district engineer will 

comply with the current procedures for 

addressing the requirements of Section 

106 of the National Historic 

Preservation Act. We also proposed to 

modify the general condition to state 

that district engineers will notify 

prospective permittees within 45 days 

of receipt of a complete pre-construction 

notification whether section 106 

consultation is required. 

One commenter agreed with the 45- 

day timeline for a Corps response. One 

commenter stated that the general 

condition should specify what 

documentation should be submitted 

with the pre-construction notification. 


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One commenter stated that it should be 

the applicant’s responsibility, not the 

Corps’, to find out if section 106 

consultation is required. 

The general condition states that, for 

activities that may have the potential to 

cause an effect on listed, eligible, or 

potentially eligible properties, the preconstruction notification must state 

which historic properties may be 

affected by the proposed work or 

include a map indicating the location of 

the project and the location of the 

historic properties. The Corps is 

responsible for making determinations 

and findings for the purposes of section 

106. We have modified paragraph (a) of 

this general condition to clarify that 

NWP activities are not authorized until 

the requirements of section 106 have 

been satisfied, in cases where the 

district engineer determines that the 

NWP activity has the potential to cause 

an effect on a historic property. If the 

applicant has provided notification to 

the Corps of possible effects on historic 

properties the applicant must wait for a 

Corps determination of either ‘‘potential 

to cause effects’’ or ‘‘no potential to 

cause effects’’ even if this takes longer 

than 45 days. 

Several commenters expressed 

concerns about the delay in NWP 

authorization resulting from the 45-day 

requirement and suggested that 

authorization be automatically granted 

if the Corps does not notify the 

applicant within 45 days. 

The 45 day period is necessary to 

allow district engineers to adequately 

review those activities that may affect 

eligible properties. During that 45 day 

period, the district engineer will 

determine if the proposed project has 

the potential to cause effects on historic 

properties. If so, the prospective 

permittee cannot begin the activity until 

section 106 consultation has been 

completed, even if 45 days has passed 

since the district received a complete 

pre-construction notification (see 33 

CFR 330.4(g)(2)). However, many 

determinations do not take the full 45 

days. The Corps cannot waive section 

106 compliance by allowing the 

applicant to assume ‘‘no potential to 

cause effects’’ if the Corps has not been 

able to respond within 45 days. 

Therefore, this provision has not been 

changed. In cases where the permittee 

has determined there are no historic 

properties for which the activity has the 

potential to cause effects, and has thus 

not notified the Corps of such properties 

(but only in such cases) the permittee 

does not have to wait for further 

confirmation of NHPA compliance from 

the Corps. 

One commenter stated that the Corps 

should eliminate the language that 

requires an applicant to notify the Corps 

if an activity may affect any property 

which the ‘‘prospective permittee has 

reason to believe may be eligible for 

listing,’’ as the Corps is required only to 

take into account the effect of an 

undertaking on property that is 

included in or eligible for inclusion in 

the National Register. Two commenters 

recommended modifying this general 

condition to require a preliminary 

survey of the project area for the 

purposes of section 106 compliance. 

The purpose of the notification 

requirement in this general condition is 

to provide the district engineer with the 

opportunity to consider effects to 

historic properties, in cases where preconstruction notification is not required 

by the NWP itself. Since the definition 

of ‘‘historic property’’ includes 

properties that are eligible for listing in 

the National Register of Historic Places, 

and the Federal agencies are required to 

carry out appropriate identification 

efforts, we believe that the concept in 

the proposed general condition is 

appropriate. We have modified this 

paragraph to provide further 

clarification of the role of the nonFederal permittee, and have added a 

sentence that states that district 

engineers are responsible for making 

final effect determinations. The 

notification requirement helps the Corps 

carry out those identification efforts. We 

have included a sentence in paragraph 

(c) to clarify that district engineers are 

to make reasonable and good faith 

efforts to identify historic properties 

when reviewing proposed NWP 

activities. We do not believe it is 

necessary to require a preliminary 

survey of the project area with the preconstruction notification. District 

engineers will review available 

information to determine if further 

investigations are warranted for section 

106 compliance. 

One commenter recommended that 

programmatic consultation and 

agreements should be allowed for 

section 106. One commenter stated that 

the Corps should initiate programmatic 

consultation on each NWP before 

reissuing them. 

Programmatic agreements conducted 

in accordance with 36 CFR 800.14(b), 

meet the requirements of this general 

condition. We do not believe 

programmatic consultation on each 

NWP in advance is necessary or 

practical. Consultation will be 

conducted as appropriate for all 

activities that may affect historic 

properties listed on, eligible, or 

potentially eligible for listing in the 

National Register of Historic Places. 

One commenter suggested clarifying 

that the work or activities that are 

prohibited from commencing until the 

Corps has provided notification of 

compliance with section 106 only refers 

to work in waters of the United States, 

not upland areas outside of this area. 

One commenter stated that this general 

condition shifts the burden of 

determining ‘‘no effect’’ on historic 

properties from applicants and the 

Corps to other agencies, which could 

delay authorization. One commenter 

recommended modifying this general 

condition to clarify the responsibilities 

of Federal permittees that use the 

NWPs. 

District engineers must evaluate 

effects on eligible historic properties 

that are within the Corps’ scope of 

analysis under section 106. This might 

include some areas outside of waters of 

the United States. However, it is correct 

that a Section 404 permit is only 

required for discharges of dredged or fill 

material into waters of the United 

States. The Corps has no authority to 

prohibit activities that do not involve 

such discharges. However, an activity in 

an upland area that adversely affects a 

historic property may make it more 

difficult for the Corps to later determine 

that a Section 106 consultation is not 

required for an associated discharge of 

dredged or fill material into waters of 

the United States, and/or may 

complicate any Section 106 consultation 

that is subsequently required. The 

district engineer is responsible for 

making determinations and findings 

under section 106. This process has not 

changed. We have added a new 

paragraph (b) to this general condition, 

which states that Federal permittees 

should follow their own procedures for 

complying with the requirements of 

section 106. 

One commenter expressed concerns 

that the general condition lacks clarity 

about who is responsible for 

identification and evaluation of historic 

properties and determination of effects, 

how such identification will be 

accomplished, and the nature of 

consultation required. This commenter 

suggested revised wording for the 

general condition and recommended 

that the Corps include a definition for 

historic properties. We agree that the 

wording proposed by this commenter 

clarifies responsibilities and procedures 

and have revised the general condition 

accordingly. We have also added a 

definition for historic property in the 

‘‘Definitions’’ section for the NWPs. 

This commenter also noted that the 

Corps’’ historic properties regulations 


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are not consistent with Advisory 

Council on Historic Preservation’s 

regulations at 36 CFR part 800 and are 

not approved by the Council. As noted 

by the commenter, the Corps and the 

Council are currently involved in 

discussions to resolve the differences 

between the Corps’ procedures and the 

Council’s regulations at 36 CFR part 

800. Pending the outcome of those 

discussions, the reference in this general 

condition to the Corps current 

procedures means the Corps ‘‘Revised 

Interim Guidance for Implementing 

Appendix C of 33 CFR Part 325 with the 

Revised Advisory Council on Historic 

Preservation’s Regulations at 36 CFR 

Part 800’’ dated April 25, 2005. 

The use of the interim guidance, as 

well as the Corps Regulatory Program 

procedures for the protection of historic 

properties at Appendix C of 33 CFR Part 

325, are provisional measures to comply 

with the requirements of Section 106 of 

the National Historic Preservation Act 

until updated alternative procedures 

that are tailored to the Corps Regulatory 

Program can be promulgated through 

the appropriate processes. 

This general condition is adopted 

with the modifications discussed above. 

GC 19. Designated Critical Resource 

Waters. We proposed to modify this 

general condition to eliminate 

provisions that duplicate the 

requirements of other general 

conditions. 

One commenter recommended adding 

proposed NWPs E and F to paragraph (a) 

of this general condition, to prohibit the 

use of those permits to authorize 

discharges of dredged or fill material in 

waters of the United States for activities 

in, or directly affecting, critical resource 

waters. 

We have modified paragraph (a) of 

this general condition to include NWPs 

E and F (now designated as NWPs 49 

and 50), since those activities have the 

potential to result in more than minimal 

adverse effects to designated critical 

resource waters and their adjacent 

wetlands. These mining activities may 

be authorized by individual permits or 

regional general permits in these waters. 

One commenter stated that the Corps 

should not prohibit the use of an NWP 

in critical resource waters if the agency 

managing those critical resource waters 

approves those activities. This 

commenter recommended requiring preconstruction notification for all 

activities in critical resource waters and 

conducting coordination with the 

managing agency. Another commenter 

stated that limiting the use of NWPs in 

designated critical resource waters 

should be done through regional 

conditions and coordination with state 

and local agencies and resource 

agencies, instead of a general condition. 

Paragraph (a) of this general condition 

lists those NWPs that have a greater 

potential to result in more than minimal 

adverse effects on the aquatic 

environment, if they involve discharges 

of dredged or fill material into those 

designated critical resource waters, or 

their adjacent wetlands. Therefore, it 

would be more appropriate to review 

those activities through the individual 

permit process, with agency 

coordination, or authorize those 

activities through regional general 

permits. The designated critical 

resource waters listed in this general 

condition are generally considered to be 

important to the national public 

interest. Proposed activities involving 

discharges of dredged or fill material 

into those waters and their adjacent 

wetlands warrant more thorough 

review, through either the preconstruction notification process or 

other forms of Department of the Army 

authorization, such as individual 

permits. 

One commenter suggested that in 

order to provide consistency with state 

definitions, a definition for ‘‘natural 

heritage sites’’ should be included in the 

text of this general condition. 

Natural heritage sites are defined and 

designated by state agencies. The 

criteria and processes for designating 

state natural heritage sites vary from 

state to state. District engineers will 

utilize the appropriate state 

designations when implementing this 

general condition. Therefore, we do not 

believe that it is appropriate to provide 

a definition of state natural heritage 

sites at the national level. 

One commenter suggested that source 

waters used for drinking water or 

ground water recharge should be 

included in the definition of critical 

resource water. The same commenter 

suggested that there should be no 

provision for the use of discretionary 

authority regarding discharges of 

dredged or fill material into designated 

critical waters. 

Concerns regarding impacts to sources 

for drinking water and ground water 

recharge are more appropriately 

addressed through regional conditioning 

of the NWPs or review of preconstruction notifications for specific 

and identified waters. Division 

engineers can regionally condition the 

NWPs to prohibit or limit their use in 

such high value waters. District 

engineers will exercise discretionary 

authority and require individual permits 

for activities proposed in high value 

waters that will result in more than 

minimal adverse effects on the aquatic 

environment. 

One commenter said that critical 

resource waters should include the 

following areas: watersheds of 

nationally-designated wild and scenic 

rivers, waters within wilderness areas, 

national parks and wildlife refuges, and 

all waters with similar state 

designations. Another commenter 

recommended adding waters designated 

as National Monuments and National 

Historic Sites to the categories of waters 

in this general condition. This 

commenter also said that vernal pools, 

bogs and fens, native wet prairie, 

forested wetlands, eelgrass beds, and 

coral reefs should also be considered as 

designated critical resource waters 

subject to this general condition. 

The use of NWPs in components of 

the National Wild and Scenic River 

System or designated study rivers is 

addressed by general condition 15, Wild 

and Scenic Rivers. Restricting or 

prohibiting the use of NWPs in waters 

of the United States within wilderness 

areas, national parks, national 

monuments, national historic sites, 

national wildlife refuges, or statedesignated wilderness, parks, or refuges, 

is more appropriately addressed through 

the regional conditioning process. In 

areas where vernal pools, bogs and fens, 

native wet prairie, forested wetlands, 

eelgrass beds, and coral reefs warrant 

greater levels of protection, division 

engineers may impose regional 

conditions on NWPs to restrict or 

prohibit their use in those waters. 

Division engineers will determine 

whether regional conditions are 

necessary to ensure that the NWPs 

authorize only activities resulting in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment in those areas. 

This general condition is adopted 

with the modification discussed above. 

GC 20. Mitigation. We proposed 

several modifications to this general 

condition, such as requiring 

compensatory mitigation for NWP 

activities that require a pre-construction 

notification and result in the loss of 

greater than 1⁄10 acre of wetlands. We 

also proposed to add a provision stating 

that compensatory mitigation may be 

required for activities that result in 

permanent adverse effects to certain 

aquatic resource functions and services. 

Several commenters requested 

clarification as to whether 

compensatory mitigation is required 

only for permanent losses of waters of 

the United States, or whether it is also 

required for temporary impacts to those 

waters. A commenter asked if 

compensatory mitigation for stream bed 


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impacts should be quantified as linear 

feet or acres. A couple of commenters 

said that district engineers should be 

able to require compensatory mitigation 

for losses of other types of waters of the 

United States, such as streams. One 

commenter expressed support for 

watershed-based compensatory 

mitigation. One commenter said that it 

was unclear how the proposed 

compensatory mitigation rule published 

in the March 28, 2006, issue of the 

Federal Register (71 FR 15520) would 

apply to the NWP program. One 

commenter said that preservation 

should not be used as compensatory 

mitigation. 

Compensatory mitigation is required 

only for permanent losses of waters of 

the United States, or for permanent 

adverse effects to aquatic resource 

functions (such as those described in 

paragraph (h) of this general condition). 

The restoration of waters of the United 

States where there were temporary fills 

and other impacts during the 

construction activity is not considered 

compensatory mitigation. Those actions 

are addressed by general condition 13. 

The unit of measure used to quantify 

stream bed impacts and compensatory 

mitigation is at the discretion of the 

district engineer. Compensatory 

mitigation may be required for losses of 

streams and other types of waters of the 

United States, to ensure that the NWP 

activity results in minimal individual 

and cumulative adverse effects on the 

aquatic environment. To clarify this 

concept, we have added a new 

paragraph (d) to this general condition, 

which states that the district engineer 

may require compensatory mitigation 

for losses of streams and other waters of 

the United States. When a final 

compensatory mitigation rule becomes 

effective, it will apply to all types of 

Department of the Army permits, 

including the NWPs. We are in the 

process of reviewing comments on the 

proposed rule and developing the final 

rule, in cooperation with the 

Environmental Protection Agency. 

Preservation of aquatic resources is an 

important form of compensatory 

mitigation which is appropriate in some 

cases to protect and maintain aquatic 

resource functions and services in the 

watershed. All compensatory mitigation 

should be determined, to the extent 

practicable, using a watershed approach 

that considers watershed needs 

holistically and identifies locations and 

types of compensatory mitigation that 

will be most beneficial to the watershed. 

Two commenters said that 

prospective permittees should be 

required to submit statements with 

NWP pre-construction notifications that 

explain how avoidance and 

minimization of losses of waters of the 

United States was achieved. They said 

that this statement would assist district 

engineers in determining if avoidance 

and minimization has been achieved to 

the maximum extent practicable. One 

commenter objected to including 

temporary adverse effects in the 

language in paragraph (a) of this general 

condition, stating that it is contrary to 

the definition of ‘‘loss of waters of the 

United States’’ which refers only to 

permanent losses. Another commenter 

said that compensatory mitigation 

should be considered only after 

avoidance and minimization has 

occurred. 

We do not agree that it is necessary 

to require an avoidance and 

minimization statement with preconstruction notifications to evaluate 

whether avoidance and minimization 

has been achieved to the maximum 

extent practicable on the project site. 

The information required for a complete 

pre-construction notification, including 

any plans submitted with the preconstruction notification, is sufficient 

for district engineers to determine 

compliance with this general condition. 

We believe the minimization of 

temporary impacts to waters of the 

United States is important for ensuring 

that NWP activities result in minimal 

adverse effects on the aquatic 

environment, even though those 

impacts do not result in permanent 

losses and generally do not require 

compensatory mitigation. The 

requirements of this general condition 

support the mitigation sequence of 

avoidance, minimization, and 

compensation. Compensatory mitigation 

requirements are determined after 

considering compliance with the 

avoidance and minimization provisions 

of this general condition. 

Several commenters expressed 

support for the 1⁄10 acre threshold for 

requiring compensatory mitigation for 

wetland losses that require preconstruction notification. A number of 

commenters said that compensatory 

mitigation should be required for all 

wetland losses, because of the potential 

cumulative impacts resulting from many 

small wetland losses. Several 

commenters asserted that there are 

enough mitigation banks and in-lieu fee 

programs throughout the country to 

require compensatory mitigation for 

wetland losses of less than 1⁄10 acre. 

Two commenters recommended 

changing the compensatory mitigation 

threshold to 1⁄4 acre, and one commenter 

reasoned that the threshold should be 

higher because the NWP program 

already meets the ‘‘no overall net loss’’

goal for wetlands. Two commenters said 

that there should not be a mandatory 

compensatory mitigation requirement 

for the NWPs. Compensatory mitigation 

should be required only when necessary 

to ensure minimal adverse effects. 

We are retaining the 1⁄10 acre 

compensatory mitigation threshold for 

wetland losses, with the provision 

allowing district engineers to waive this 

requirement on a case-by-case basis if 

the activity results in minimal adverse 

effects on the aquatic environment. This 

will help ensure that we continue to 

achieve the ‘‘no overall net loss’’ goal 

while providing appropriate flexibility 

and transparency to the wetlands 

compensatory mitigation requirements 

for the NWPs. We do not believe it is 

appropriate or practicable to require 

compensatory mitigation for all 

activities authorized by NWPs that 

result in wetland losses. Even though 

there are several hundred mitigation 

banks and in-lieu fee programs in the 

United States that are currently 

operational, these mitigation banks and 

in-lieu fee programs are not distributed 

throughout the country in a manner that 

would support the recommended 

change to this general condition. In 

many regions, individual permitteesponsored projects are the only option 

available for compensatory mitigation to 

offset losses authorized by NWP 

activities. For very small impacts, such 

projects may not be practicable. Because 

most larger projects require more than 

one-for-one compensation, we are 

confident that we can continue to meet 

the ‘‘no overall net loss’’ goal without 

requiring mitigation for all impacts. 

One commenter said that general 

condition 20 is not consistent with 33 

CFR 320.4(r)(2), which states that 

compensatory mitigation will be for 

significant resource losses. This 

commenter articulated that there is large 

difference between ‘‘no more than 

minimal’’ and ‘‘significant resource 

loss.’’ This commenter also stated that if 

the proposed activity requires a preconstruction notification and will result 

in loss of greater than 1⁄10 acre of 

wetlands, but the activity will result in 

minimal adverse effects, then 

compensatory mitigation cannot be 

required. This commenter 

recommended removing the 1⁄10 acre 

threshold, and modifying the general 

condition to simply state that the 

district engineer will require 

compensatory mitigation when 

necessary to ensure minimal individual 

and cumulative adverse effects on the 

aquatic environment. 

General condition 20 is consistent 

with the NWP regulations governing 

mitigation (see 33 CFR 330.1(e)(3)). That 


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regulation states that mitigation may be 

required to reduce the adverse effects of 

the NWP activity so that they are 

minimal. There is already sufficient 

flexibility in the general condition for 

the district engineer to waive the 

compensatory mitigation requirement 

for wetland losses that exceed 1⁄10 acre 

if the project impacts are minimal. We 

believe the threshold serves an 

important purpose in communicating to 

the public that in most cases, impacts of 

greater that 1⁄10 acre will be judged to be 

more than minimal and will require 

compensatory mitigation. 

One commenter asked whether the 1⁄10 acre threshold for requiring 

compensatory mitigation for wetland 

losses also applies to non-wetland 

waters of the United States. Several 

commenters stated that compensatory 

mitigation should be required for all 

authorized impacts to waters of United 

States. One commenter said that 

compensatory mitigation for losses of 

non-wetland waters of the United States 

should be optional. Another commenter 

said that on-site restoration of 

temporarily impacted areas should be 

achieved before compensatory 

mitigation is required. 

The 1⁄10 acre compensatory mitigation 

threshold in paragraph (c) applies only 

to wetland losses. We are adding a new 

paragraph (d) to this general condition, 

to clarify that the district engineer may 

require compensatory mitigation for 

losses of streams and other types of 

waters of the United States. We do not 

believe it is necessary to require 

compensatory mitigation for all 

authorized impacts to waters of the 

United States. In response to preconstruction notifications, 

compensatory mitigation requirements 

for losses of streams and other open 

waters will be determined by district 

engineers on a case-by-case basis, to 

ensure minimal adverse effects. The 

NWP general conditions, especially 

general condition 13, Removal of 

Temporary Fills, address the restoration 

of temporarily impacted areas. 

Compensatory mitigation is required 

only for permanent losses, however, 

temporary impacts must also be 

minimized. 

Three commenters asked for specific 

criteria that would be used by district 

engineers to determine when 

compensatory mitigation would be 

required for NWP activities. Two 

commenters requested clarification 

regarding the circumstances when 

compensatory mitigation would be 

required for wetland losses of less than 

1⁄10 acre. One commenter recommended 

that permittees who believe their project 

should not require compensatory 

mitigation be required to provide a 

justification for why compensatory 

mitigation is not necessary for their 

NWP activities. 

Compensatory mitigation 

requirements will be determined by 

district engineers on a case-by-case 

basis, after considering relevant and 

available information, such as the 

ecological conditions of the project site, 

the type of activity, the impacts of the 

activity on the aquatic environment and 

other public interest factors, and the 

type of aquatic resources that will be 

adversely affected by the NWP activity. 

To the extent practicable, this 

evaluation will be conducted using a 

watershed approach. Compensatory 

mitigation will be required for wetland 

losses of less than 1⁄10 acre, when the 

district engineer determines it is 

necessary to ensure minimal adverse 

effects on the aquatic environment. This 

is particularly likely in areas where 

there is concern for the cumulative 

effects of multiple small losses. District 

engineers will review pre-construction 

notifications, and determine when 

compensatory mitigation will be 

required. It is not necessary to require 

permittees to provide a statement 

explaining why compensatory 

mitigation is not needed, however 

permittees are welcome to provide such 

information if they believe it will help 

the district engineer in determining the 

amount and type of required mitigation. 

Such statements are most useful when 

they are based on sound technical 

analysis using a watershed approach 

that draws on pre-existing assessments 

of watershed needs. 

One commenter supported the 

provision allowing the district engineer 

to waive or reduce the compensatory 

mitigation requirement for wetland 

losses, when other forms of mitigation, 

such as the establishment and 

maintenance of riparian areas, would be 

better for the environment. One 

commenter said that off-site 

compensatory mitigation should be 

preferred in areas where invasive 

species are a problem. One commenter 

suggested that the general condition 

retain a preference for restoration. 

The location of compensatory 

mitigation projects will be determined 

on a case-by-case basis. Off-site 

compensatory mitigation may be more 

appropriate for a variety of reasons, in 

addition to concerns for invasive 

species. Off-site compensatory 

mitigation may be more effective at 

replacing aquatic resource functions 

that will be lost as a result of the NWP 

activity. Off-site mitigation may also 

have a better chance of success, 

particularly if the proximity of the 

permitted activity is likely to adversely 

impact the mitigation (e.g., through 

altered hydrology). This general 

condition retains a preference for 

wetland restoration, but the text has 

been modified to reflect the language in 

the 1990 ‘‘Memorandum of Agreement 

Between the Environmental Protection 

Agency and the Department of the Army 

Concerning the Determination of 

Mitigation Under the Clean Water Act 

404(b)(1) Guidelines.’’

One commenter agreed with the oneto-one mitigation ratio in paragraph (c) 

of this general condition, provided there 

is flexibility in determining the 

appropriate ratio for a specific NWP 

activity. Several commenters said that 

district engineers should be allowed to 

require higher ratios of compensatory 

mitigation, to help ensure effective 

mitigation. 

The mitigation ratio in paragraph (c) 

is a recommended minimum ratio that 

can be adjusted upward as necessary to 

provide for more appropriate mitigation 

for a specific activity. For a particular 

NWP activity, the district engineer will 

determine the appropriate mitigation 

ratio. Ratios of greater than one-to-one 

are often required to ensure that 

appropriate amounts of compensatory 

mitigation are provided to satisfy the 

minimal adverse environmental effects 

requirements of the NWPs. Higher ratios 

may be used to address temporal losses, 

uncertainty in mitigation success, and/ 

or differences in functions and services 

between the impact site and the 

mitigation site. 

One commenter expressed support for 

paragraph (d) of this general condition. 

We are retaining this paragraph, with 

slight changes to its text to provide 

greater clarity. The substance of this 

paragraph remains unchanged. Because 

of the addition of a new paragraph (d), 

this paragraph is redesignated as 

paragraph (e). 

Several commenters objected to 

requiring riparian areas as 

compensatory mitigation for activities 

authorized by NWPs, stating that the 

Corps lacks authority to require nonwetland riparian areas as compensatory 

mitigation. One commenter provided 

support for the use of riparian areas as 

compensatory mitigation, and another 

commenter said that riparian areas 

should be required for all activities. 

This commenter said that using riparian 

areas as the only form of compensatory 

mitigation is appropriate when the 

project impacts would be more than 

minimal without the protection of the 

riparian area. Another commenter 

asserted that the Corps is attempting to 

expand its jurisdiction by requiring 

establishment and maintenance of 


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riparian areas. One commenter asked for 

clarification of the jurisdictional status 

of riparian areas under the Clean Water 

Act. A commenter said that riparian 

areas cannot be required as 

compensatory mitigation for NWP 

activities near streams because 

compensatory mitigation projects may 

only consist of areas that are, or will 

become, waters of the United States. 

The establishment and maintenance 

of riparian areas can be required by the 

district engineer as compensatory 

mitigation, to help ensure that the NWP 

activity results in minimal individual 

and cumulative adverse effects on the 

aquatic environment. Such a 

requirement does not make non-wetland 

riparian areas subject to Clean Water 

Act jurisdiction. Since non-wetland 

riparian areas are not jurisdictional, this 

paragraph also states that legal 

protection should be provided to the 

riparian areas, for their protection and 

maintenance. In many areas, riparian 

areas will be wetlands subject to Clean 

Water Act jurisdiction. In other areas 

riparian areas will not meet the criteria 

in the Corps wetland definition at 33 

CFR 328.3(b). 

We do not agree that the 

establishment and maintenance of 

riparian areas should be required for all 

NWP activities. It may not be a 

practicable or appropriate form of 

compensatory mitigation for some NWP 

activities. 

Regardless of whether they are 

wetland or non-wetland, riparian areas 

generally provide ecological functions 

that are important to the aquatic 

environment, and especially to the 

ecological integrity of streams. 

Examples of ecological functions 

provided by riparian areas include: 

removing nutrients and pollutants from 

surface runoff, which improves water 

quality; moderating storm flows to 

streams, which reduces downstream 

flooding and degradation of aquatic 

habitat; erosion reduction; moderating 

water temperature changes; providing 

detritus, a food source for many aquatic 

organisms; providing a source of large 

woody debris to stream channels, which 

provides habitat for aquatic organisms; 

providing habitat to a wide variety of 

aquatic and terrestrial species; trapping 

sediments, thereby reducing 

degradation of stream habitat quality; 

providing corridors for the movement 

and dispersal of many species of 

wildlife; and providing flood storage 

capacity. 

Compensatory mitigation projects can 

include areas that are not waters of the 

United States, as long as the mitigation 

is directly related to the impacts of the 

proposed work on such waters and 

appropriate to the scope and degree of 

those impacts. Riparian areas are 

integral components of streams and 

other open waters, and are essential for 

their ecological integrity and 

functioning. The establishment and 

maintenance of riparian areas as 

compensatory mitigation for activities 

authorized by NWPs and other types of 

permits also helps advance the objective 

of the Clean Water Act, which is to 

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters.’’ Therefore, riparian 

areas can be required as compensatory 

mitigation for NWP activities. 

One commenter asked whether the 

establishment and maintenance of 

riparian areas as compensatory 

mitigation is mandatory or 

discretionary. Two commenters said 

that in many areas with ephemeral 

waters, it may not be possible to 

establish and maintain riparian areas 

next to those waters. Another 

commenter stated that it is not always 

feasible to provide legal protection (e.g., 

conservation easements) for riparian 

areas within highway rights-of-way. One 

commenter said that for ephemeral 

streams, vegetated buffers should be 

required instead of riparian areas. 

The establishment and maintenance 

of riparian areas as a compensatory 

mitigation requirement is at the 

discretion of the district engineer. 

Compensatory mitigation requirements 

are established on a case-by-case basis, 

to ensure that the NWP activity results 

in minimal individual and cumulative 

adverse effects on the aquatic 

environment. If ephemeral streams are 

located on the project site, it may not be 

feasible to establish and maintain 

riparian areas next to those waters. 

Riparian areas should be self-sustaining. 

Also, if it is not possible to protect 

riparian areas through real estate 

instruments, the district engineer may 

require alternate arrangements or an 

alternative form of compensatory 

mitigation, as appropriate to the 

situation. 

The general condition contains a 

recommended width of 25 to 50 feet for 

riparian areas on each side of the 

stream. Two commenters said that 

requiring 25 to 50 foot wide riparian 

areas may not always be feasible, and 

may be too costly. A commenter stated 

that the recommended width of riparian 

areas should be at least 150 feet to 

protect water quality, and wider to 

provide other ecological functions. 

Another commenter suggested a 

minimum width of 100 feet. One 

commenter indicated that wider 

riparian areas should be required to 

address habitat issues identified in 

federal or state watershed plans. 

Another commenter stated that wider 

riparian areas should be required to 

protect salmon habitat. One commenter 

requested clarification regarding the 

documentation necessary to determine 

the appropriate width of the riparian 

area. 

The appropriate width of the riparian 

area will be determined by the district 

engineer, taking into account the 

ecological characteristics of the project 

site, as well as the nature and extent of 

the overall activity that will be 

constructed on the project site. The 

recommended width for riparian areas 

is intended to provide balance between 

environmental protection and the 

development of the project site. The 

recommended width is also intended to 

be commensurate with the level of 

impacts that need to be mitigated. The 

Corps’ regulations require compensatory 

mitigation to be appropriate to the scope 

and degree of the authorized impacts. 

Requiring the establishment and 

maintenance of a 150-or 100-foot wide 

riparian area could comprise a 

substantial land area on a parcel, and 

would likely be an inappropriate 

amount of compensatory mitigation for 

an NWP activity, especially for an NWP 

that has a 1⁄2 acre limit for losses of 

waters of the United States. The 

information provided in the site plans, 

as well as supporting documentation, is 

normally sufficient to determine the 

appropriate width of the riparian area. 

Another commenter said that there 

needs to be flexibility to allow use of 

other tools to protect water quality, such 

as storm water management features, 

instead of requiring the establishment 

and maintenance of riparian areas. One 

commenter stated that riparian areas 

should be planted only with local 

genetic stocks of native plant species. 

Storm water management features, as 

well as best management practices, may 

be used instead of riparian areas to 

protect water quality, if site 

characteristics do not support the 

establishment and maintenance of 

riparian areas. Native species should be 

planted, but we do not agree that it is 

necessary to limit those plantings to 

local genetic stocks, though this should 

be encouraged where practicable. Such 

stocks may not be available in the area, 

and therefore such a requirement may 

not be practicable. 

Two commenters stated that this 

general condition should clearly state 

that mitigation banks can be used to 

provide compensatory mitigation for 

NWPs. One commenter said that the use 

of mitigation banks to provide 

compensatory mitigation for NWP 

activities should be limited to the same 


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watershed as authorized impacts. Two 

commenters said that in-lieu fee 

programs should not be used for the 

NWPs. Another commenter stated that 

in-lieu fee programs should not be used 

for compensatory mitigation for NWP 

activities unless they comply with 2000 

in-lieu fee guidance. Two commenters 

expressed support for the use of in-lieu 

fee programs to provide compensatory 

mitigation for NWP activities. 

Both mitigation banks and in-lieu fee 

programs can be used to provide 

compensatory mitigation for activities 

authorized by NWP permits. The 

established service area of the 

mitigation bank, as well as the judgment 

of the district engineer, will be used to 

determine whether credits provided by 

that mitigation bank are appropriate 

compensation for a specific NWP 

activity. In-lieu fee programs can 

provide compensatory mitigation 

projects that benefit the aquatic 

environment, as well as the watershed. 

When the final Compensatory 

Mitigation Rule is published, any 

changes in mitigation requirements will 

be applied to the NWP program as 

necessary at that time. 

Paragraph (g) of the proposed general 

condition stated that compensatory 

mitigation may be required to offset 

permanent adverse effects to certain 

functions and services provided by 

waters of the United States, such as 

converting a forested wetland to a 

herbaceous wetland. Three commenters 

objected to characterizing this as an 

adverse effect. Two commenters said 

that compensatory mitigation should 

not be required for these impacts. Two 

commenters asserted that this paragraph 

should be deleted, since there is ample 

guidance concerning when 

compensatory mitigation should be 

required for these types of impacts. Two 

other commenters supported adding this 

provision to the general condition. 

We are retaining this provision, while 

redesignating it as paragraph (h). 

Compensatory mitigation can be 

required for adverse effects to aquatic 

resources, even specific functions 

provided by those aquatic resources. 

One commenter recommend adding 

language to this general condition 

which would state that the district 

engineer will determine appropriate 

compensatory mitigation based on what 

is best for the aquatic environment on 

a watershed basis. Another commenter 

requested clarification that the 

establishment of upland buffers around 

compensatory mitigation projects is 

voluntary, and compensatory mitigation 

credit would be provided for such 

vegetated buffers. 

We do not believe it is necessary to 

revise the general condition to 

specifically state that appropriate 

compensatory mitigation will be 

determined based on what would be 

best for the aquatic environment on a 

watershed basis, though this is certainly 

the policy of the Corps. Mitigation 

policy documents, such as Regulatory 

Guidance Letter 02–02, already support 

that concept. There is also an extensive 

discussion of the watershed approach in 

the preamble to the proposed 

Compensatory Mitigation Rule. District 

engineers may grant compensatory 

mitigation credit for upland buffers 

surrounding compensatory mitigation 

project sites, if those buffers contribute 

to the ecological functioning and 

sustainability of those projects. Any 

requirement to establish and maintain 

vegetated buffers around compensatory 

mitigation project sites should be based 

on considerations of practicability and 

appropriateness. 

One commenter asserted that the 

Corps does not have the statutory 

authority to require conservation 

easements to protect compensatory 

mitigation projects. This commenter 

said that such a requirement is 

problematic for mining activities 

because different parties may own 

different rights (e.g., surface rights v. 

mineral rights) associated with the 

parcel of land. 

The district engineer has the 

discretion to require conservation 

easements for compensatory mitigation 

project sites, to protect those sites, if he 

or she determines that this is necessary 

to ensure minimal adverse impacts. In 

some cases, it may not be feasible to 

require conservation easements because 

the various rights associated with a 

particular parcel of land may belong to 

different individuals. In such cases, 

other methods of protecting the 

mitigation site should be explored. 

One commenter said that this general 

condition should be revised to provide 

performance standards for 

compensatory mitigation projects 

required for NWP activities. This 

commenter also recommended retaining 

the requirement for NWP verifications 

to specify the party responsible for 

implementing the compensatory 

mitigation plan, instead of limiting it 

only to cases where the use of 

mitigation banks, in-lieu fee programs, 

and activity-specific compensatory 

mitigation is required. 

Performance standards for 

compensatory mitigation projects are 

usually specific to certain types of 

aquatic resources and are, therefore, 

more appropriately determined by the 

district engineer. It would be 

inappropriate to establish national 

performance standards through this 

general condition, because of the 

considerable variation among aquatic 

resource types across the country. 

Paragraph (g) of this general condition 

requires the mitigation provisions of 

NWP verifications to specify the party 

responsible for providing compensatory 

mitigation. This requirement applies to 

all three types of compensatory 

mitigation, including compensatory 

mitigation provided by the permittee. 

General condition 20 is adopted, with 

the modifications discussed above. 

GC 21. Water Quality. We proposed to 

modify this general condition by 

simplifying the provision regarding 

requirements for water quality 

management measures. 

Several commenters expressed 

support for the proposed changes to this 

general condition. One commenter 

suggested that this general condition 

should not apply to NWPs 27 or 48, 

because the activities authorized by 

these NWP result in improvements to 

water quality. 

If an aquatic habitat restoration, 

establishment, or enhancement activity 

or a commercial shellfish aquaculture 

activity involves discharges of dredged 

or fill material that require a section 404 

permit, then water quality certification 

must be obtained, either for the NWP 

generally or individually by the project 

proponent, or waived. This is a 

requirement of Section 401 of the Clean 

Water Act. Therefore, we cannot modify 

this general condition to exclude NWPs 

27 or 48. 

Several commenters stated that this 

general condition creates the potential 

for duplicative oversight of water 

quality issues by the Corps and EPA or 

its designated state agency. Another 

commenter said that it would be 

arbitrary for the Corps to attempt to 

regulate water quality by requiring some 

type of undefined water quality 

management measures. 

Whether duplicative or not, Section 

401 certification by EPA or a State or 

Tribe, as appropriate, is required by the 

Clean Water Act. District engineers can 

condition NWP authorizations to ensure 

that the authorized activity results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other factors of the 

public interest, including water quality. 

By requiring water quality management 

measures necessary to ensure that the 

authorized activity results in minimal 

adverse effects, the Corps is not 

attempting to regulate water quality. 

Appropriate water quality management 

measures will be identified on a caseVerDate Aug<31>2005 18:31 Mar 09, 2007 Jkt 211001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4703 E:\FR\FM\12MRN2.SGM 12MRN2

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by-case basis through the NWP 

verification process. 

A Section 401 certification must be 

obtained or waived prior to 

commencing the authorized activity. In 

cases where a state has not yet provided, 

or has denied, water quality 

certification, for an NWP generally, the 

permittee must request individual 

certification before proceeding and 

provide documentation of this request 

to the Corps. The district engineer will 

wait for a reasonable period of time after 

receipt of this documentation. The NWP 

regulations generally define this period 

of time as 60 days, after which the 

district engineer can assume a waiver of 

the water quality certification. The wait 

period may vary as a result of 

negotiations between the district 

engineer and the state, but it cannot 

exceed one year. The district engineer 

will inform the project sponsor of the 

appropriate waiting period for 

presumption of a waiver of certification. 

The activity may not proceed until the 

project sponsor has received individual 

certification from the state or the 

waiting period has elapsed. This general 

condition is adopted as proposed. 

GC 22. Coastal Zone Management. We 

proposed to modify this general 

condition to state that the district 

engineer or state may require additional 

measures to ensure consistency with 

state coastal zone management 

requirements. 

One commenter stated that use of the 

term ‘‘waived’’ in this general condition 

is inappropriate, because Coastal Zone 

Management Act (CZMA) consistency 

determinations cannot be waived. This 

commenter also stated that obtaining a 

CZMA consistency concurrence cannot 

be a condition of a Federal permit, 

because the CZMA states that a Federal 

permit cannot be issued until a CZMA 

consistency concurrence is issued. 

We have modified this general 

condition by removing the phrase ‘‘or 

waived’’ and replacing it with the 

phrase ‘‘or a presumption of 

concurrence must occur’’ to be 

consistent with the implementing 

regulations for the CZMA. This general 

condition is an appropriate means of 

ensuring compliance with CZMA 

requirements, especially for those NWP 

activities that do not require preconstruction notification. For activities 

subject to the CZMA, the NWP 

authorization is not valid until the 

permittee has complied with the 

requirements of the CZMA, including 

the requirement to obtain CZMA 

consistency concurrence or a 

presumption of concurrence. 

A CZMA concurrence or presumption 

of concurrence must be obtained prior 

to commencing the authorized activity. 

In cases where a state has not acted on, 

or has disagreed with the Corps’

consistency determination, the 

permittee must provide the state with an 

individual consistency determination 

for concurrence, and must provide the 

district engineer with the state’s 

individual consistency concurrence or a 

copy of the individual consistency 

determination provided to the state for 

concurrence. If the state fails to act on 

the permittee’s consistency 

determination within six months of 

receipt by the state, concurrence will be 

presumed. 

This general condition is adopted 

with the modification discussed above. 

GC 23. Regional and Case-by-Case 

Conditions. We proposed to modify this 

general condition to clarify that water 

quality certifications may be issued by 

Indian Tribes or the U.S. Environmental 

Protection Agency, and that states issue 

CZMA consistency determinations. 

One commenter recommended 

modifying this general condition to 

clarify that the U.S. EPA has delegated 

the section 401 water quality 

certification program to many states, 

and that in those cases it is the 

designated state that issues the water 

quality certification, not the U.S. EPA. 

We do not agree that this suggested 

modification is necessary, since the 

wording already recognizes that 

delegated States or Tribes may issue 

Section 401 water quality certifications. 

This general condition is adopted as 

proposed. 

GC 24. Use of Multiple Nationwide 

Permits. We proposed to modify this 

general condition by making a 

grammatical adjustment. 

Several commenters objected to the 

practice of using more than one NWP to 

authorize a single and complete project. 

In contrast, two commenters said that 

combining NWPs is both appropriate 

and desirable as a means for the Corps 

to reduce its workload and provide 

expedited approvals to the regulated 

public. Two comments said that the 

proposed general condition has the 

effect of raising the acreage limit when 

an NWP with an acreage limit is 

combined with another NWP that has 

no set limit. One commenter suggested 

rewording the general condition in the 

affirmative. One commenter suggested 

replacing the term ‘‘temporary loss’’

with ‘‘temporary impact’’ for purposes 

of calculating the loss of waters of the 

United States. 

We agree that the ability to use 

multiple NWPs reduces our workload 

and expedites decisions for the 

regulated public while maintaining the 

necessary protections for the aquatic 

environment. When two NWPs are used 

to authorize a single and complete 

project, and one NWP has a specified 

limit and the other NWP has no 

specified limit, the general condition 

states that the acreage loss of waters of 

the United States cannot exceed the 

acreage limit of the NWP with the 

highest specified acreage limit. The 

NWP with the specified acreage limit 

establishes the acreage limit for the 

single and complete project, not the 

NWP with no designated acreage limit. 

We believe phrasing this general 

condition as a prohibition assists in 

compliance. The reference to ‘‘acreage 

loss’’ in this general condition applies to 

permanent losses, to be consistent with 

the definition of ‘‘loss of waters of the 

United States’’ provided in the 

‘‘Definitions’’ section of the NWPs. 

This general condition is adopted as 

proposed. 

GC 25. Transfer of Nationwide Permit 

Verifications. We proposed to add this 

new general condition to the NWPs. 

Several commenters supported the 

proposed general condition. One 

commenter requested clarification 

whether there would be a standardized 

form for the parties to sign and submit. 

Another commenter recommended 

adding a permit transfer form as a 

separate section of the NWP verification 

or certificate of compliance. 

This general condition provides 

specific language that must be included 

in all NWP verification transfer request 

letters from the original permittee to the 

appropriate Corps district office, to 

validate the transfer of the NWP 

verification to a new property owner. 

District engineers have the discretion to 

incorporate this language in NWP 

verification letters, either as language 

within the text of the letter, or as a 

separate form or attachment. At their 

discretion, district engineers may also 

ask permittees to include the referenced 

language as part of their own transfer 

request letter. 

One commenter requested 

clarification whether the permit transfer 

information would be tracked in a 

database and made available to the 

public and other regulatory agencies. 

The permit transfer authorization 

information will be retained in the 

appropriate recordkeeping facilities at 

Corps district or field offices. The 

information will be provided upon 

request to the public or other agencies. 

One commenter recommended adding 

a sentence to the transfer statement to be 

signed, specifying that any changes in 

the permitted project must be evaluated 

by the district engineer and could 

require modifications to the permit. 


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Any requests for modification of an 

activity previously authorized by a DA 

permit will be reviewed by the district 

engineer. If the new proponent wants to 

modify the previously verified activity, 

the proposed modification must be 

submitted for the consideration of the 

Corps, to verify that the activity still 

complies with the terms and conditions 

of the applicable NWP. We do not 

believe it is necessary to add a sentence 

to this general condition to describe this 

requirement, which applies regardless 

of whether the permit is transferred or 

not. 

Several commenters stated that this 

general condition only addresses the 

sale of the property associated with an 

NWP verification, and recommended 

that it be expanded to allow the transfer 

of a permit verification when 

responsibility over the project is 

transferred even if the lands in question 

do not undergo change in ownership. 

Another commenter suggested clarifying 

that the transfer provision is also 

applicable when only part of the 

property covered by the NWP is sold. 

This commenter also suggested 

changing the phrase ‘‘associated 

liabilities associated with compliance 

with its terms and conditions’’ to read 

‘‘obligations to comply with its terms 

and conditions.’’

The language for the proposed general 

condition was taken from Appendix A 

of 33 CFR 325, which is the standard 

form for Department of the Army 

permits. This language is found at 

general condition 4 of Appendix A. We 

believe that the language in this general 

condition should be consistent with our 

standard permit language. 

One commenter requested 

clarification on how the NWP 

verification transfer would affect off-site 

mitigation requirements associated with 

an NWP verification. One commenter 

requested clarification as to whether the 

transfer is a required condition or an 

option. 

As stated in this general condition, 

when a property associated with an 

NWP verification is sold, the 

responsibilities and liabilities associated 

with the NWP verification are 

transferred to the new owner. This 

includes any mitigation requirements 

added as special conditions to the NWP 

authorization being transferred. 

Transferring the NWP verification to the 

new owner of the property is not 

necessary if the new owner decides not 

to conduct the authorized activity. The 

new owner also has the option of 

obtaining a different NWP verification. 

However, if the activity is (or was) 

conducted and any permit conditions 

are still applicable, the new owner must 

have some form of DA authorization. 

This general condition is adopted as 

proposed. 

GC 26. Compliance Certification. We 

did not propose any substantive changes 

to this general condition. One 

commenter suggested changing the 

name of this general condition to 

‘‘Compliance Verification’’ to avoid 

confusion with other certifications such 

as water quality certifications. 

We do not agree with the proposed 

name change for this condition. For this 

general condition, the permittee is 

certifying that he or she has completed 

the authorized work and any required 

mitigation. 

This general condition is adopted as 

proposed. 

GC 27. Pre-Construction Notification. 

We proposed to modify and simplify 

this general condition by removing 

language that is redundant with the 

terms of specific NWPs. We also 

proposed to modify the information 

requirements for pre-construction 

notifications. Other proposed 

modifications are discussed in the 

September 26, 2006, Federal Register 

notice. 

Two commenters stated that the 

reference to using ENG FORM 4345 

should be removed because this form 

does not contain the necessary 

information required for a complete preconstruction notification. One 

commenter requested that a complete 

pre-construction notification be defined. 

It is not necessary to use ENG FORM 

4345 for pre-construction notifications. 

Instead of using ENG FORM 4345, a 

prospective permittees may choose to 

supply the information in a letter. Some 

districts provide checklists to assist 

prospective permittees, especially if 

they have regional conditions that 

specify additional information that must 

be submitted with pre-construction 

notifications. 

One commenter asked if a preconstruction notification is presumed to 

be complete if the district engineer does 

not request additional information 

necessary to make the pre-construction 

notification complete within 30 days. 

This commenter also requested 

clarification on when the 45-day preconstruction notification review period 

begins. One commenter suggested that 

the district engineer should be allowed 

to make more than one request of 

additional information in order to make 

a more informed decision. 

If 30 days has passed since the preconstruction notification was received 

by the Corps district, the preconstruction notification will be 

presumed to be complete. The 45 day 

pre-construction notification review 

period begins on the date the complete 

pre-construction notification is received 

by the Corps district. If the district 

engineer requests additional 

information necessary to make the preconstruction notification complete, a 

new 45 day review period begins on the 

date the requested information is 

received by the Corps district. If no 

request for additional information is 

received, the original pre-construction 

notification is deemed complete and the 

45 day review period begins on the date 

the pre-construction notification was 

received by the Corps district. 

The provision limiting the district 

engineer to one request for additional 

information applies only to those 

requests for information necessary to 

complete the pre-construction 

notification. We have modified the 

second sentence of paragraph (a) to 

provide flexibility in cases where there 

are extenuating circumstances that 

warrant an additional request for 

information necessary to make a preconstruction notification complete. 

Such requests must also be made within 

the 30 calendar days of receipt of the 

pre-construction notification. This 

sentence has been modified to state that, 

as a general rule, the district engineer 

will make only one request for 

additional information to make the preconstruction notification complete. 

District engineers should endeavor to 

make only one request for additional 

information to make a pre-construction 

notification complete. 

The information requirements for a 

complete pre-construction notification 

are provided in paragraph (b) of this 

general condition. We believe the 

information required for a complete preconstruction notification is the 

minimum information necessary for 

district engineers to begin the process of 

determining whether the proposed work 

will result in minimal adverse effects on 

the aquatic environment and is 

authorized by NWP. 

If, as a result of the review of the 

complete pre-construction notification, 

the district engineer determines that 

additional information (such as a 

compensatory mitigation plan) is 

needed to make a final decision on 

whether the activity qualifies for NWP 

authorization or discretionary authority 

should be asserted, the district engineer 

may request that information. In cases 

where this additional information is 

necessary to make a decision on the preconstruction notification, the decision 

must still be made within 45 days of the 

receipt date for the complete preconstruction notification. 


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Two commenters said that the burden 

has shifted from the Corps to the 

prospective permittee for Endangered 

Species Act or National Historic 

Preservation Act compliance, and there 

is no relief provided in the 45 day clock 

for applicants when Endangered Species 

Act or section 106 consultation is 

necessary. Two commenters stated that 

if the 45 day period has passed, the 

NWP verification should be issued even 

if the Endangered Species Act or section 

106 requirements have not been 

completed. One commenter inquired if 

the Corps could ensure that the 

Endangered Species Act or National 

Historic Preservation Act consultation 

processes will conclude within 45 days. 

One commenter said that paragraphs 

(b)(6) and (b)(7) of this general condition 

should clarify whether Federal 

permittees are required to submit 

information for compliance with the 

Endangered Species Act or Section 106 

of the National Historic Preservation 

Act. 

Permittees cannot presume NWP 

authorization if any endangered or 

threatened species or critical habitat 

might be affected or is in the vicinity of 

the project or if the project is located in 

designated critical habitat, or if the 

activity may have the potential to cause 

effects to any historic properties listed, 

determined to be eligible for listing, or 

potentially eligible for listing on the 

National Register of Historic Places (see 

general conditions 17 and 18). The NWP 

regulations state that if the prospective 

permittee notifies the district engineer 

that Federally-listed endangered or 

threatened species or critical habitat 

might be affected or are in the vicinity 

of the project, he or she cannot begin 

work until notified by the district 

engineer that the requirements of the 

Endangered Species Act have been 

satisfied (see 33 CFR 330.4(f)(2)). There 

is a similar provision for historic 

properties (see 33 CFR 330.4(g)(2)). We 

have modified general conditions 17 

and 18 to require district engineers to 

inform permittees of the need to 

conduct these consultations within 45 

days of receipt of complete preconstruction notifications, however, 

even if such notice is not received, the 

permittee cannot assume authorization. 

The permittee makes the first 

determination as to whether general 

conditions 17 or 18 are triggered, and 

will know if he or she has notified the 

Corps of any potential effects on listed 

species or critical habitat, or on historic 

properties. If so, the permittee must wait 

for written verification from the Corps 

that ESA and historic preservation 

requirements have been satisfied. In 

cases where Endangered Species Act or 

section 106 consultation is necessary, 

we cannot require those consultations to 

be concluded with 45 days of receipt of 

a complete pre-construction 

notification. Those consultations often 

take more than 45 days; their 

timeframes are only partially within the 

control of the Corps. The Corps will do 

what it can to expedite any required 

consultations. 

We have inserted the phrase ‘‘for nonFederal permit applicants’’ in 

paragraphs (b)(6) and (b)(7) since 

Federal permittees are to follow their 

own procedures for complying with the 

Endangered Species Act and the 

National Historic Preservation Act. Nonfederal permittees are required to 

submit the information required by 

these paragraphs, since the Corps will 

use that information to determine 

whether it is necessary to conduct 

Section 7 or Section 106 consultations 

for those activities that may affect listed 

species, critical habitat, or historic 

properties. 

One commenter recommended 

modifying paragraph (b) of this general 

condition to include guidance on the 

types of information and analyses that 

should be submitted with preconstruction notifications to support 

‘‘effect’’ determinations and 

consultation efforts under Section 7 of 

the Endangered Species Act. This 

commenter said that this guidance 

should include instructions on how 

prospective permittees can obtain 

species lists. This commenter also 

suggested amending paragraph (b) to 

include guidance on evaluating ‘‘effects 

of the action’’ and constructing 

‘‘consultation packages’’ for informal 

and formal Section 7 consultation. 

In paragraph (e) of general condition 

17, Endangered Species, we have 

provided the links to the Web sites of 

the U.S. Fish and Wildlife Service and 

the National Marine Fisheries Service, 

where prospective permittees can go to 

obtain further information on 

endangered or threatened species or 

critical habitat. The available 

information regarding endangered or 

threatened species or critical habitat 

varies by Service field office, and we 

believe providing a general link is 

sufficient since their Web pages are 

likely to change over time. As for 

providing guidance regarding 

information and analyses to be used for 

Endangered Species Act compliance, it 

would be more appropriate for our 

district offices to work with the field 

offices of the Services to develop such 

guidance as necessary, since the 

appropriate types of information and 

analyses are likely to vary by species, 

and the type of activity being 

conducted. 

One commenter stated that assuming 

the NWP verification after 45 days is 

problematic because many states require 

the Corps verification letter prior to 

commencing the water quality 

certification review. 

In cases where the 45 day preconstruction review period has passed, 

the permittee must still comply with 

general condition 21, Water Quality. 

After the applicant has submitted an 

application for individual water quality 

certification, waiver of the requirement 

to obtain water quality certification for 

an NWP is assumed if the applicant has 

not heard from the state or Tribe within 

a reasonable amount of time, generally 

60 days (see 33 CFR 330.4(c)(6)). If the 

state requires a Corps verification for 

water quality certification, the permittee 

must wait for the verification. The Corps 

will make every effort to provide 

verification letters within 45 days. 

One commenter said that the 45 day 

default authorization provision should 

be eliminated and two commenters 

requested that the 45 day review period 

be reduced to 30 days. Two commenters 

asked if the time frames are measured in 

calendar days or business days. One 

commenter requested a list of potential 

differences in information requirements 

for pre-construction notifications for the 

various NWPs. 

We are maintaining the 45 day default 

authorization provision. We are 

modifying the text of general condition 

27 to clarify that calendar days are used. 

Paragraph (b) of this general condition 

lists all of the information necessary for 

a complete pre-construction 

notification. Corps districts can provide 

checklists to assist prospective 

permittees, especially if they have 

regional conditions that specify 

additional information that must be 

submitted with pre-construction 

notifications. 

Two commenters expressed support 

for removing part of (a)(2) from the 

notification general condition adopted 

in 2002. One commenter suggested 

modifying paragraph (a)(2) to state that 

a prospective permittee cannot begin an 

NWP activity that requires a written 

waiver of NWP limits, until the written 

waiver is issued by the district engineer. 

One commenter said the district 

engineer should be required to provide 

written waivers to prospective 

permittees within the 45 day timeframe. 

We have modified paragraph (a)(2) to 

state that the permittee cannot begin the 

activity until the district engineer issues 

the written waiver required by an NWP. 

Such waivers do not have to be 


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provided during the 45-day preconstruction notification review period, 

because the written waiver is required 

by the terms and conditions of the 

applicable NWP. For proposed projects 

that require any type of written waiver, 

district engineers must make a written 

determination that the proposed work 

will result in no more than minimal 

adverse effects on the aquatic 

environment. District engineers will try 

to determine whether or not to grant 

waivers as expeditiously as possible. 

One commenter expressed support for 

the proposed changes to paragraph 

(b)(3). Another commenter said that 

paragraph (b)(3) contains an incomplete 

sentence. One commenter 

recommended adding a requirement for 

the prospective permittee to state how 

avoidance and minimization was 

accomplished in order for the Corps to 

make a better decision. One commenter 

suggested that the prospective permittee 

should list any waivers that are 

requested. One commenter said that 

paragraph (b)(3) should be modified to 

require analyses of losses of juvenile 

salmonid over wintering habitat and 

early rearing habitat. 

We have inserted the words ‘‘and to 

determine the need for’’ before ‘‘any 

necessary compensatory mitigation’’ to 

complete the sentence in paragraph 

(b)(3). District engineers will review preconstruction notifications in accordance 

with general condition 20, Mitigation, to 

determine whether the prospective 

permittee has accomplished all 

practicable avoidance and minimization 

on the project site. The present 

information requirements in paragraph 

(b)(3) will suffice for determining 

whether waivers of NWP limits are 

being requested by the prospective 

permittee. Assessments of potential 

impacts to juvenile salmon are more 

appropriately addressed by Corps 

districts where significant salmon 

impacts are occurring. 

Two commenters agreed with the 

requirement to include a delineation of 

wetlands and other waters of the United 

States with the pre-construction 

notification. One commenter asked if an 

approved jurisdictional determination is 

necessary for a complete preconstruction notification. One 

commenter said that the general 

condition should clarify whether a 

prospective permittee can assume that a 

delineation submitted with a preconstruction notification is an approved 

jurisdictional determination. One 

commenter stated a delineation of 

special aquatic sites should be required 

for NWPs 3, 11, 13, 19, 27, 29, 31 and 

36. Two commenters voiced concern 

that delineating wetlands and waters of 

the United States beyond those actually 

impacted by the project is too 

burdensome when working on large 

project sites. 

The permittee cannot assume that a 

delineation of waters of the United 

States submitted with a pre-construction 

notification is an approved 

jurisdictional determination. 

Jurisdictional determinations are made 

by the Corps and documented through 

the issuance of an NWP verification. 

The Corps is in the process of revising 

its procedures for issuing and 

documenting its jurisdictional 

determinations, and will be providing 

guidance shortly. 

The 45-day pre-construction 

notification review period starts on the 

date that a complete pre-construction 

notification is received. If the district 

engineer determines that the delineation 

is incorrect and requests a revised 

delineation from the applicant, the 45- 

day review period starts again when the 

revised delineation is received by the 

district engineer. This general condition 

requires delineations of special aquatic 

sites and other waters of the United 

States on the project site, so it is not 

necessary to specify which NWPs 

require delineations with their preconstruction notifications. Since this 

paragraph refers to project site, it does 

not imply that all waters of the United 

States on the property need to be 

delineated. The delineation need only 

cover a sufficient area surrounding the 

proposed NWP activity. 

One commenter stated the while the 

methodology for delineating wetlands is 

established, methods for delineating 

non-wetland waters of the United States 

are lacking. One commenter voiced 

concern with the language stating that 

the delineation must be prepared in 

accordance with the ‘‘current method 

required by the Corps’’ and requested 

that we state that wetland delineations 

cannot be based solely on National 

Wetland Inventory maps because they 

were not developed for the 404 program. 

Furthermore, it was urged that the Corps 

require field-based delineations and not 

approve any delineations for waters of 

the United States, including wetlands, 

without a field inspection. 

Delineations of non-wetland waters of 

the United States should follow the 

definitions for these areas. For example, 

in using the definition for riffle and pool 

complexes, maps indicating stream 

segments containing riffle and pool 

complexes and their location can be 

used as delineations of these special 

aquatic sites. It is not necessary to 

precisely map each riffle and pool 

complex within a stream. Rather, the 

delineation need only show the 

locations of special aquatic sites at a 

sufficient level of detail for the district 

engineer to determine the potential for 

these sites to be impacted by project 

activities. 

The reference to the ‘‘current method’’

means the 1987 Corps of Engineers 

Wetland Delineation Manual, associated 

guidance, and any approved regional 

supplements to the 1987 manual. 

National Wetland Inventory maps are 

useful for planning purposes but they 

do not provide delineations of waters of 

the United States. It is not necessary to 

require field inspections for all 

delineations of waters of the United 

States. 

One commenter expressed concern 

regarding the language in paragraph 

(b)(4) that discusses situations where 

the Corps would conduct delineations. 

In this paragraph we are simply stating 

that if a prospective permittee relies on 

the Corps to conduct a delineation, that 

prospective permittee should anticipate 

delays due to the workloads facing the 

district engineers. 

One commenter suggested modifying 

paragraphs (b)(5) and (e) to clarify that 

these paragraphs refer to permanent 

losses. One commenter recommended 

changing paragraph (b)(5) to require the 

prospective permittee to state why the 

project would exceed minimal adverse 

impacts without additional mitigation. 

Two commenters suggested that there 

should not be a requirement to submit 

detailed compensatory mitigation plans 

with a pre-construction notification, 

because of the costs to develop 

mitigation plans that may not be 

required once the district engineer 

makes a decision on the preconstruction notification. 

It is unnecessary to modify these 

paragraphs to specify that we are 

referring to permanent losses, because 

the NWP definition for ‘‘loss of waters 

of the United States’’ refers only to 

permanent losses. In fulfilling the 

requirements of paragraph (b)(5), the 

prospective permittee’s statement can 

explain how the proposed activity 

complies with general condition 20. 

Paragraph (c) of general condition 20 

states that the district engineer can 

waive the requirement for wetlands 

compensatory mitigation or require an 

alternate form of mitigation. We are 

modifying paragraph (b)(5) of this 

general condition to allow project 

proponents to submit conceptual or 

detailed mitigation plans. 

One commenter said that a conceptual 

mitigation plan is not sufficient and 

detailed plans should be required. One 

commenter requested that detailed 

compensatory mitigation monitoring 

plans be required for activities 


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authorized by NWPs 12, 14, 21, 29, 39, 

40, 41, 42, 43, 44, 45, 46, 47, 48, 49, and 

50. 

Conceptual mitigation plans are 

appropriate for submittal with preconstruction notifications. These 

conceptual plans are useful in making 

initial determinations regarding the 

appropriateness of proposed 

compensatory mitigation. If not 

submitted with the pre-construction 

notification, detailed compensatory 

mitigation plans will be required prior 

to commencing the authorized activity 

in cases where the permittee is 

performing the mitigation. If the 

permittee is using a mitigation bank or 

in-lieu fee program, he or she must 

provide the name of the bank or 

program and the number and type of 

credits being purchased. 

One commenter suggested that 

paragraph (d)(2) be modified to include 

NWPs 20 and 38 with NWP 37, because 

of the emergency nature of these 

activities. We do not agree that this is 

necessary, because NWP 20 does not 

require pre-construction notification 

and NWP 38 is not limited to emergency 

situations. We are adding numbers to 

the paragraphs within paragraph (d) to 

provide greater clarity. 

One commenter recommended 

modifying paragraph (d) to reduce the 

acreage threshold for agency 

coordination from 1⁄2 acre to 1⁄10 acre, 

because of the 1⁄10 acre threshold for 

wetlands compensatory mitigation. 

The present threshold for agency 

coordination is sufficient, since 

activities resulting in the loss of greater 

than 1⁄2 acre of waters of the United 

States have greater potential to result in 

more than minimal adverse effects. 

Decisions regarding the amount and 

type of compensatory mitigation that 

should be required for NWP activities 

are made by district engineers on a caseby-case basis in accordance with general 

condition 20 and other appropriate 

regulations and guidance. Requiring 

agency coordination for losses of less 

than 1⁄2 acre would result in a 

substantial workload increase to Corps 

districts and the resource agencies, and 

is unlikely to provide significant 

additional protection for the aquatic 

environment. 

One commenter said that the 

authority to sign NWP verifications 

should not be delegated to Corps project 

managers. 

Districts have the authority to 

determine the appropriate level of 

signature authority for NWP 

verifications, to implement the NWP 

program effectively. 

This general condition is adopted 

with the modifications discussed above. 

GC 28. Single and Complete Project. 

We are adding a new general condition 

to clarify that the NWPs authorize only 

single and complete projects. This is in 

response to a commenter’s concern 

about the removal of language from the 

2002 NWPs which limited the use of 

certain NWPs to a single and complete 

project or a part of a single and 

complete project. That language was in 

NWPs 13, 15, 18, 19, 29, 39, 42, 43, and 

44. 

Limiting all NWPs to authorize only 

single and complete projects is a longstanding practice. In this new general 

condition, the authorized activity must 

be a single and complete project. In 

addition, this general condition states 

that the same NWP can be used only 

once to authorize that single and 

complete project. For example, NWP 39 

cannot be used twice to authorize a 

commercial development. This general 

condition is consistent with general 

condition 24, Use of Multiple 

Nationwide Permits. The new general 

condition will help improve 

environmental protection by clarifying 

that piecemealing of activities that 

require Department of the Army permits 

is prohibited. 

Former general condition 27. 

Construction Period. We proposed to 

remove this NWP general condition. 

Several commenters expressed 

support for the removal of this general 

condition, stating that it would 

eliminate confusion about the time 

frames when the NWPs are in effect. 

Several commenters objected to the 

elimination of this general condition, 

stating that it was needed since it took 

into account unexpected situations, 

which can delay the completion of a 

project. One commenter opposed the 

removal of this general condition, 

stating that it provided necessary 

flexibility at the end of a NWP cycle, 

and still allowed the permittee to 

complete the work without having to 

request another permit or verification 

from the Corps. Several other 

commenters said that elimination of this 

general condition could result in 

considerable delays and economic 

burdens for completion of projects with 

no more than minimal adverse effects. 

One commenter stated that removing 

this general condition would result in 

more individual permits for activities 

that would not result in more than 

minimal impacts. 

We are removing this general 

condition, because it does not comply 

with Section 404(e)(2) of the Clean 

Water Act, which places a five-year 

limit on general permits issued under 

section 404. Since this general condition 

did not specify any limits on project 

completion dates, in effect it provided 

the district engineer with the authority 

to state that the NWP activity was 

authorized for any period of time. We 

believe that this is contrary to section 

404(e)(2). 

Under the current NWP regulations, 

district engineers may issue NWP 

verification letters that are valid for a 

period of two years. In cases where an 

NWP verification letter expires before 

the NWP itself expires, the activity 

continues to be authorized by the NWP 

until the NWP expires. It is not 

necessary to issue a new verification 

during the five year period the NWP is 

in effect. Any special conditions that 

were imposed by the district engineer 

remain in effect after the NWP 

verification expires, unless the district 

engineer removes those conditions. 

Once the NWP expires, the permittee 

can utilize 33 CFR 330.6(b) to complete 

the work. That regulation allows 

permittees to continue work for one year 

in reliance on an NWP authorization, if 

that NWP has expired or been modified 

or revoked, and the activity is under 

construction or under contract to 

commence construction. If that work 

cannot be completed within that oneyear time period, then the permittee 

would have to obtain another DA 

authorization. We continue to believe 

that 33 CFR 330.6(b) is sufficient to 

address the concern with projects that 

may not be completed before an NWP 

expires. For NWP activities that will 

require substantial amounts of time to 

complete, project proponents should 

consider whether it would be more 

advantageous to pursue an individual 

permit authorization. Individual permits 

can authorize greater flexibility in 

construction periods. An individual 

permit authorization can also be 

extended, as long as the district 

engineer determines that the time 

extension would be consistent with 

applicable regulations and would not be 

contrary to the public interest. 

One commenter requested 

clarification on whether newly issued 

NWP verifications for specific projects 

would be valid for five years or for only 

one to two years. Two commenters 

suggested that all NWP verifications 

should be issued with five-year 

expiration periods. Another commenter 

suggested that all NWP verifications 

should be set to expire concurrently 

with the NWPs themselves. Similarly, 

another commenter requested 

clarification on whether applicants 

could request NWP verifications with 

expiration dates corresponding to the 

new NWPs expiration date. 

In the November 30, 2004, issue of the 

Federal Register (69 FR 69567) we 


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published a proposed rule that would 

allow district engineers to issue NWP 

verifications that would expire on the 

same date the NWP expires. Until that 

final rule is issued, the current 33 CFR 

330.6(a)(3)(ii) applies, which states that 

an NWP verification letter can be valid 

for no more than two years. However, as 

stated above the activity continues to be 

authorized by the NWP until the NWP 

expires. 

Definitions 

One commenter said that the NWP 

definitions should be promulgated 

through the Administrative Procedure 

Act rulemaking process, and placed in 

the Code of Federal Regulations since 

many of these terms apply to other 

aspects of the regulatory program. 

The definitions adopted today have 

been promulgated through the 

Administrative Procedure Act process. 

These definitions apply only to the 

NWP program. A separate rulemaking 

action would be required to adopt 

definitions with general applicability to 

the Corps Regulatory Program. 

One commenter asked for definitions 

of ordinary high water mark, adverse, 

land, waters of the United States, 

environmental, environmental impact, 

‘‘a timely manner’’, regulatory 

efficiency, cumulative impacts, public 

interest factors, mitigation banks, 

permittee-responsible mitigation, in-lieu 

fee program, aquatic resource functions, 

and grandfathering. Another commenter 

requested a definition of ‘‘temporary 

loss.’’

We are providing a separate definition 

of ordinary high water mark. Previously, 

this definition was in the definitions of 

‘‘open water’’ and ‘‘waterbody.’’ The 

term ‘‘waters of the United States’’ is 

defined at 33 CFR part 328. We do not 

believe it is necessary to define, for the 

purposes of the NWP program, the terms 

‘‘environmental,’’ ‘‘environmental 

impact,’’ ‘‘a timely manner,’’ ‘‘regulatory 

efficiency,’’ or ‘‘grandfathering.’’

Commonly accepted definitions for 

those terms are sufficient for the 

implementation of the NWP program. 

The Corps uses the definition of the 

term ‘‘cumulative impact’’ from the 

Council on Environmental Quality’s 

regulation at 40 CFR 1508.7. The terms 

‘‘mitigation bank’’ and ‘‘in-lieu fee 

program’’ are currently defined by the 

November 28, 1995, mitigation banking 

guidance (60 FR 58605). The 

grandfather provisions for NWP 

authorizations are provided at 33 CFR 

330.6(b). It is more appropriate to define 

the terms ‘‘permittee-responsible 

mitigation’’ and ‘‘aquatic resource 

functions’’ through the promulgation of 

the final compensatory mitigation rule 

required by Section 314 of the National 

Defense Authorization Act for Fiscal 

Year 2004. Defining ‘‘temporary loss’’ is 

not desirable, because it would likely 

result in a reduction in flexibility in 

implementation of the NWP program. 

Where there is ambiguity, district 

engineers should have flexibility to 

determine, on a case-by-case basis, 

whether a particular activity causes a 

temporary or permanent loss of waters 

of the United States. 

Two commenters requested a 

definition of ‘‘minimal effects.’’ Another 

commenter said that this term should be 

defined regionally, since it cannot be 

defined at a national level. 

We continue to maintain our position 

that the term ‘‘minimal effects’’ cannot 

be simply defined at a national level. It 

is challenging to define it precisely even 

at smaller scales, such as states or 

watersheds. There is considerable 

variation in aquatic resource functions, 

services, and values across the country. 

There is also wide variation in those 

functions, services, and values at 

smaller landscape scales. Site-specific 

factors, such as the types and amounts 

of functions provided by waters, the 

services those aquatic resource 

functions provide, the value society 

places on those functions and services, 

the geomorphic setting of those waters, 

and other factors are important to 

consider when determining whether an 

NWP activity will result in minimal 

adverse effects on the aquatic 

environment. We believe the term 

‘‘minimal,’’ while not precise, is well 

understood by the public and has not 

caused undue confusion in the 

implementation of the Section 404 

program to date. A certain amount of 

flexibility on the part of district 

engineers to determine what is 

‘‘minimal’’ in a particular context, after 

consideration of the factors discussed 

above, is necessary for the practical 

implementation of the program. 

Best management practices (BMPs). 

We proposed to modify this definition 

by removing the last sentence. One 

commenter suggested that we 

acknowledge that BMPs may have 

impacts on groundwater and subsurface 

water. 

Although best management practices 

may impact hydrology, the definition 

need not address that issue. The 

definition is adopted as proposed. 

Compensatory mitigation. We 

proposed to modify this definition by 

removing the phrase ‘‘For the purpose of 

Section 10/404, compensatory 

mitigation is.’’ We also proposed to 

replace ‘‘creation’’ with establishment 

(creation).’’ One commenter expressed 

support for removing ‘‘exceptional 

circumstances’’ in relation to the use of 

preservation as a type of compensatory 

mitigation. One commenter stated that 

‘‘aquatic resource’’ should be defined in 

the context of jurisdiction. Another 

commenter stated that this definition 

should be consistent with the other 

terms for different types of 

compensatory mitigation that are 

provided in this section, specifically the 

definition provided for establishment 

(creation). 

Compensatory mitigation may be 

provided by aquatic resources that are 

not subject to the Corps regulatory 

jurisdiction. Therefore, it is not 

necessary to modify this definition by 

replacing ‘‘aquatic resources’’ with 

‘‘waters of the United States.’’ We have 

added the word ‘‘creation’’, to be 

consistent with ‘‘establishment 

(creation),’’ which is defined in this 

section. The definition is adopted as 

proposed. 

Currently serviceable. We proposed to 

move the term and definition from NWP 

3 to this section since it is used for other 

NWPs. One commenter suggested that 

most culvert replacement projects, 

regardless of current serviceability, have 

minimal impacts and recommended 

adding language allowing a failed 

culvert to be considered currently 

serviceable, so that it would be eligible 

for NWP 3 authorization. 

While we agree that most culvert 

replacements have minimal impacts, the 

definition encourages maintenance to be 

conducted before the structure or fill 

falls into such a state of disrepair that 

it can no longer be considered 

serviceable. The definition is adopted as 

proposed. 

Discharge: We are adding a definition 

of the term ‘‘discharge’’ to clarify when 

a discharge of dredged or fill material 

occurs for an NWP activity. This 

definition clarifies that the term 

‘‘discharge’’ as used in the NWPs, also 

applies to any activity that causes or 

results in a discharge, as defined at 33 

CFR 323.2. 

Enhancement. We proposed to modify 

this definition to be consistent with the 

wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’ We 

did not receive any comments on the 

proposed definition. The definition is 

adopted as proposed. 

Ephemeral stream. We did not 

propose any changes to this definition. 

Four commenters said that this 

definition should address the 

jurisdictional status of ephemeral 


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streams. Some of these commenters said 

that this definition should be removed, 

because these features are not 

jurisdictional. One commenter stated 

that the hydrologic criteria in the 

second and third sentences should be 

qualified as occurring in a ‘‘typical 

year.’’ One commenter suggested we 

define them as features that lack a 

connection to the water table and are 

not waters of the United States. One 

commenter said that this definition 

should state that groundwater is not 

typically a source of water for an 

ephemeral stream. 

We do not agree that it is appropriate 

to state in the definition of this term that 

ephemeral streams are not waters of the 

United States because many ephemeral 

streams are subject to Clean Water Act 

jurisdiction as waters of the United 

States. Further, neither the NWPs nor 

this preamble are intended to address 

jurisdictional issues. If an ephemeral 

stream is not a water of the United 

States, as defined at 33 CFR part 328, 

then no Section 404 permit is required 

for discharges of dredged or fill material 

into it. An ephemeral stream that meets 

the criteria at 33 CFR part 328 is a water 

of the United States. The phrase 

‘‘typical year’’ applies to the entire 

definition, not just the first sentence. 

Groundwater is not a source of water for 

an ephemeral stream. 

The definition is adopted as 

proposed. 

Establishment (creation). We 

proposed to modify this definition to be 

consistent with the wetland project type 

described in Regulatory Guidance Letter 

02–02 and the definition in the Council 

on Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

One commenter suggested defining 

‘‘upland’’ and ‘‘deepwater site,’’ and 

retaining the flexibility of the current 

term ‘‘creation’’ when in-kind 

mitigation is conducted. One 

commenter said that the definition of 

‘‘creation’’ should be retained until 

questions regarding the extent of the 

Corps jurisdiction are resolved. Another 

commenter recommended the removal 

of ‘‘deepwater’’ from this definition 

because deepwater areas are aquatic 

resources. 

We do not believe it is necessary to 

define the word ‘‘upland’’ for purposes 

of the NWP program. This definition 

need not specifically address 

jurisdictional issues. What constitutes 

an ‘‘upland’’ in contrast to an ‘‘aquatic 

resource’’ will depend on the practices 

in place at the time the determination is 

made. We are removing the word 

‘‘deepwater’’ because it is an aquatic 

resource. This definition is adopted 

with the modification discussed above. 

Historic property. In response to one 

commenter, we are adding this term to 

the ‘‘Definitions’’ section. It is adapted 

from the Advisory Council on Historic 

Preservation’s definition at 36 CFR 

800.16(l)(1), and is provided for the 

convenience of users of the NWPs. 

Independent utility. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Intermittent stream. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Loss of waters of the United States. 

We proposed to modify this definition 

by replacing the phrase ‘‘above-grade, 

at-grade, or below-grade fills’’ with 

‘‘discharges of dredged or fill material’’

to be consistent with the definitions of 

‘‘fill material’’ and ‘‘discharge of fill 

material’’ issued on May 9, 2002 (67 FR 

31129) at 33 CFR 323.2. We also 

proposed to eliminate the sentence 

stating that impacts to ephemeral 

streams are not included in the linear 

foot limits for stream impacts in NWPs 

39, 40, 42, and 43, because of the 

proposed changes to those NWPs. We 

also proposed to add a sentence to this 

definition to clarify that activities 

exempt from section 404 permit 

requirements are not included when 

calculating the loss of waters of the 

United States. 

Three commenters stated that 

activities that are not regulated should 

not be included. One commenter 

asserted that temporary fills should be 

included as a loss because the functions 

and values may not return. Six 

commenters said that ephemeral 

streams should not be included when 

determining whether the proposed work 

exceeds the acreage limit of the NWP 

because the Corps lacks jurisdictional 

authority in these areas. One commenter 

stated that intermittent streams and 

artificially created wetlands should not 

be included for the same reason. 

Another commenter said that the acres 

of waters of the United States provided 

as compensatory mitigation should 

count towards the acreage limit. One 

commenter stated that the loss of stream 

bed should include inundation, in 

addition to filling and excavation. 

The first sentence of this definition 

states that the permanent adverse effects 

are caused by the regulated activity. 

Therefore, unregulated or exempt 

activities are not included when 

calculating the loss of waters of the 

United States. Temporary fills should 

not be considered as losses of waters of 

the United States, since they are 

required to be restored (see General 

Condition 13, Removal of Temporary 

Fills). If they are not restored properly, 

then the district engineer may consider 

them to be permanent losses. District 

engineers may also consider permanent 

losses of specific aquatic resource 

functions and services when 

determining if mitigation is required 

(see paragraph (h) of general condition 

20, Mitigation). Ephemeral streams, 

intermittent streams, and man-made 

wetlands that meet the regulatory 

definition of ‘‘waters of the United 

States’’ are included for the purposes of 

this definition. As discussed in 

paragraph (e) of general condition 20, 

compensatory mitigation cannot be used 

to decrease the acreage loss of waters of 

the United States for purposes of 

determining whether an NWP acreage 

threshold is exceeded. Mitigation can be 

used to ensure that adverse effects are 

minimal. Inundation does not usually 

result in the loss of stream bed. Once 

the cause of inundation has been 

removed, the normal water level of the 

stream will return. (Note: The use of the 

term ‘‘flooding’’ in the definition of 

‘‘loss of waters of the United States’’

refers to the flooding of wetlands. This 

conversion of wetlands to open waters 

is considered a loss of waters.) 

We have modified the first sentence of 

this definition to make it a complete 

sentence. In the third sentence of this 

definition, we replaced the word 

‘‘existing’’ with ‘‘jurisdictional’’ to 

clarify that the measurement applies to 

waters of the United States. 

The definition is adopted with the 

modifications discussed above. 

Non-tidal wetland. We did not 

propose any changes to this definition. 

One commenter noted that not all 

wetlands are waters of the United 

States. We agree and have removed the 

parenthetical expression from this 

definition. 

Open water. We proposed to change 

this definition by adding a sentence that 

describes what an ordinary high water 

mark is. One commenter said that the 

definition of ordinary high water mark 

should be removed because there is not 

common agreement regarding the 

definition of this term. One commenter 

recommended using the definition of 

‘‘ordinary high water mark’’ from 1975 

regulations. One commenter suggested 

removing the language defining 

‘‘ordinary high water mark’’ and making 

it a separate definition. One commenter 

said that this definition should not 

include ephemeral waters because they 

are not open waters. Another 

commenter stated that this definition 

should be removed, because it is not 

used in the NWPs or general conditions. 


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We have removed the language 

defining ‘‘ordinary high water mark’’

and provided it as a separate definition 

in this section. The definition is from 33 

CFR 328.3(e). Ephemeral waters are 

considered open waters, because they 

have flowing or standing water, at least 

for short periods of time. This definition 

is used in NWPs 4, 27, 30 and 47, as 

well as general conditions 9 and 20. The 

definition is adopted with the 

modification discussed above. 

Ordinary high water mark. Several 

commenters recommended providing a 

stand alone definition of this term. 

We have provided a definition of 

ordinary high water mark in this 

section. It is based on the definition at 

33 CFR 328.3(e). 

Perennial stream. We did not propose 

any changes to this definition. One 

commenter said that perennial flow is 

dependent on time, not the water 

source, and suggested modification of 

this definition to state that groundwater 

is usually the primary source of water, 

since some perennial streams are fed by 

snow melt rather than groundwater. 

Another commenter stated that this 

definition should recognize that some 

perennial streams appear to be 

intermittent because of surface and 

subsurface flows in areas of karst 

topography. 

We acknowledge that in some parts of 

the country, some perennial streams are 

fed solely by snowmelt. For simplicity, 

we have not included snowmelt since a 

large majority of perennial streams have 

groundwater as the primary source of 

hydrology. When determining whether a 

particular stream segment is perennial, 

district engineers should consider the 

source of hydrology and the normal 

circumstance of that hydrology. They 

will make these determinations on a 

case-by-case basis. District engineers 

can account for karst topography and 

other geological features when 

identifying perennial streams on a caseby-case basis. It is not necessary to 

modify this definition to account for 

such geological features. 

The definition is adopted as 

proposed. 

Practicable. We proposed to move this 

definition from the current ‘‘mitigation’’

general condition (GC 20) to the 

‘‘Definitions’’ section of the NWPs. One 

commenter suggested that this 

definition should be modified to 

include consideration of the availability 

of suitable locations and 

constructability, for the purposes of 

mitigation. 

While we agree that these are factors 

involved with selecting mitigation sites, 

the term ‘‘practicable’’ applies to more 

than mitigation. The definition is 

adopted as proposed. 

Pre-construction notification. We did 

not receive any comments on the 

proposed definition. The definition is 

adopted as proposed. 

Preservation. We proposed to modify 

this definition to be consistent with the 

definition for ‘‘protection/maintenance 

(preservation)’’ in Regulatory Guidance 

Letter 02–02 and the definition in the 

Council on Environmental Quality’s 

April 2006 report entitled ‘‘Conserving 

America’s Wetlands 2006: Two Years of 

Progress Implementing the President’s 

Goal.’’ One commenter expressed 

concern with the usage of ‘‘aquatic 

resources’’ in the definition because it is 

too expansive and should be defined 

and limited to waters of the United 

States. 

Compensatory mitigation projects 

involving preservation may include 

areas that are not waters of the United 

States, such as non-wetland riparian 

areas next to streams or wetlands that 

are not subject to Clean Water Act 

jurisdiction. This definition is adopted 

as proposed. 

Re-establishment. We proposed to add 

this definition to be consistent with the 

wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

One commenter suggested the definition 

should indicate re-establishment is a 

form of restoration. We do not believe 

that such clarification is necessary, 

since it is addressed by the definition 

for restoration. The definition is 

adopted as proposed. 

Rehabilitation. We proposed to add 

this definition to be consistent with the 

wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

One commenter suggested the definition 

should state rehabilitation is a form of 

restoration. We do not believe that such 

clarification is necessary, since it is 

addressed by the definition for 

restoration. The definition is adopted as 

proposed. 

Restoration. We proposed to modify 

this definition to be consistent with the 

wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’ We 

did not receive any comments on the 

proposed definition. The definition is 

adopted as proposed. 

Riffle and pool complex. We did not 

propose any changes to this definition. 

One commenter said that a riffle and 

pool complex has a reoccurring pattern 

of riffles and pools, and is not limited 

to a single riffle and pool. One 

commenter stated that this definition 

should address steep gradients that are 

not conducive to forming riffle and pool 

complexes. One commenter said that 

riffle and pool complexes are too 

common to be a special aquatic site. 

The definition of this term was taken 

from 40 CFR 230.45. District engineers 

will use their judgment to identify riffle 

and pool complexes at project sites and 

to distinguish between riffle and pool 

complexes (which are found in areas of 

moderate grades) and step-pool 

complexes (which are found in areas 

with steep grades, where the stream bed 

material consists mostly of boulders and 

large rocks). The definition is adopted 

as proposed. 

Riparian areas. We proposed to 

replace the definition of ‘‘vegetated 

buffers’’ with a definition of ‘‘riparian 

areas’’ since the latter term more 

accurately reflects what is normally 

required as mitigation for NWP 

activities where there are streams and 

other open waters on a project site. Two 

commenters objected to replacing the 

definition of ‘‘vegetated buffers’’ with a 

definition of ‘‘riparian areas’’ and said 

the terms are not interchangeable. One 

commenter supported the proposed 

change. Another commenter said that 

this definition does not match the 

definition developed by the National 

Research Council, and should be revised 

accordingly. Five commenters said that 

the use of riparian areas should be 

limited to areas adjacent to streams and 

other waters of the United States, other 

than wetlands. They said that the 

definition implies wetlands have 

riparian areas due to the use of the 

words ‘‘lands’’ and ‘‘waterbody,’’ which 

includes wetlands by definition. Three 

commenters requested that the Corps 

acknowledge that not all riparian areas 

are jurisdictional. One commenter said 

that this definition should exclude 

intermittent and ephemeral streams as 

waterbodies. 

We maintain that use of the term 

‘‘riparian areas’’ is most appropriate, 

because it is the current term used to 

categorize the areas that meet the 

criteria in this definition. We also 

acknowledge that this definition does 

not contain all the concepts provided in 

the National Research Council’s 

definition, but we have tried to provide 


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a simpler definition for use in the NWP 

program. We have modified this 

definition to clarify that lands next to 

wetlands are not riparian areas and to be 

consistent with the definition of 

‘‘waterbody.’’ We acknowledge that not 

all riparian areas are subject to Clean 

Water Act jurisdiction, but it is not 

necessary to state that fact in this 

definition. However, the use of 

jurisdictional and non-jurisdictional 

riparian areas as compensatory 

mitigation is a legitimate method to 

provide compensatory mitigation for 

certain NWP activities. Riparian areas 

may be established and maintained next 

to intermittent streams, but in arid 

regions it may not be practicable to 

establish and maintain those areas next 

to ephemeral streams because there may 

not be sufficient water to sustain plant 

communities in those areas. The 

definition is adopted with the 

modification discussed above. 

Shellfish seeding. We have added a 

definition of this term. This definition 

was derived from the definition 

provided in the preamble discussion for 

the September 26, 2006, proposal (see 

71 FR 56275). 

Single and complete project. We did 

not propose any changes to this 

definition. One commenter suggested 

that the district engineer be allowed to 

use multiple NWPs for projects that 

cross separate waterways. One 

commenter requested the definition be 

expanded to include phased projects. 

The definition already allows the 

district engineer the ability to use 

multiple NWPs on separate waterways. 

Individual phases of phased projects 

can be considered as single and 

complete projects only if they have 

independent utility and they satisfy the 

requirements of the specific NWP. We 

have revised the wording of this 

definition slightly to further clarify that 

single and complete projects must have 

independent utility and to further 

clarify how multiple stream crossings 

for linear projects are treated. (See also 

the discussion of new general condition 

28, Single and Complete Project, above.) 

The definition is adopted as modified. 

Stormwater management. No 

comments were received on this 

definition. The definition is adopted as 

proposed. 

Stormwater management facilities. 

We did not propose any changes to this 

definition. One commenter said that this 

definition is too restrictive. The 

definition does list examples of facilities 

and some of their roles but not in an 

exclusive manner. The definition is 

adopted as proposed. 

Stream bed. We did not propose any 

changes to this definition. No comments 

were received on this definition. The 

definition is adopted as proposed. 

Stream channelization. We proposed 

to simplify this definition, by generally 

considering man-made changes to a 

stream’s course, condition, capacity, or 

location to be stream channelization 

activities. One commenter fully 

supported the definition. One 

commenter requested clarification that 

mitigation projects involving a ‘‘natural 

channel design’’ do not constitute 

‘‘stream channelization.’’ Four 

commenters stated that many accepted 

techniques of bank stabilization may not 

satisfy the definition. As a result, one 

commenter recommended removing the 

word ‘‘condition’’ in order to allow 

minor changes to the bank. Another 

suggested modifying this definition to 

state that additional work undertaken to 

improve aquatic services or to increase 

the net sinuosity is not stream 

channelization. 

Compensatory mitigation projects 

involving stream restoration activities 

normally would not be considered 

stream channelization, since they 

should not substantially disrupt normal 

stream process. The restoration activity 

should restore normal stream processes, 

based on comparison to reference 

stream systems in the vicinity of the 

proposed work. We acknowledge that 

some bank stabilization activities may 

result in stream channelization. This 

definition does not prohibit minor 

changes to the stream bank. As long as 

those changes are small, and do not 

disrupt normal stream processes, they 

would not be considered as stream 

channelization. District engineers will 

consider the overall net impacts, 

including beneficial and adverse 

impacts, to the course, condition, 

capacity or location of the stream when 

determining if a project will have more 

than minimal impacts on normal stream 

processes. 

One commenter suggested inserting 

‘‘natural’’ to describe the stream to 

exclude ditches from being considered a 

stream. District engineers will 

determine on a case-by-case basis the 

type of waterbody that is a stream. This 

definition is adopted as proposed. 

Structure. We proposed to add this 

definition to the NWPs. One commenter 

said that references should be made to 

the structures included in NWPs 3 and 

5 and that the definition ignores other 

common structures like culverts and 

bridges. One commenter observed that 

the definition involves examples that 

have fill. One commenter suggested the 

definition be rewritten as: ‘‘man-made 

feature constructed in an area of 

regulated aquatic resources.’’

Adding references to NWPs 3 and 5 in 

this definition is unnecessary. The 

examples in this definition were 

adapted from 33 CFR 322.2(b) and are 

not intended to be a complete list. 

Bridges may constitute structures, but 

bridges constructed over navigable 

waters are authorized by the U.S. Coast 

Guard. Culverts may consist mostly of 

fill material, in accordance with the 

definitions at 33 CFR 323.2. Our intent 

is not to imply that structures must not 

involve fill, since the construction of 

structures may also involve fill 

activities. We agree that structures must 

be manmade and have added this 

qualifier to the definition. The 

definition is adopted as modified. 

Tidal wetland. We did not propose 

any changes to this definition. One 

commenter stated that not all wetlands 

are waters of the United States and 

suggested adding that certain vegetation 

is associated with the wetland. One 

commenter stated the high tide line is 

not the spring high tide line. 

In the context of this definition, 

wetlands subject to the ebb and flow of 

the tide are waters of the United States. 

We acknowledge that the high tide line 

may include high tides other than 

spring high tides. Therefore, we have 

modified this definition by removing 

the language that discusses spring high 

tide lines. The definition is adopted as 

modified. 

Vegetated shallows. We did not 

propose any changes to this definition. 

No comments were received on this 

definition. The definition is adopted as 

proposed. 

Waterbody. We proposed to modify 

this definition to clarify that a 

waterbody is a jurisdictional water of 

the United States. We also proposed to 

include a definition of ‘‘ordinary high 

water mark’’ in the text of this 

definition. Five commenters said that 

the definition should be changed to 

reflect recent judicial rulings that affect 

Clean Water Act jurisdiction. They also 

stated that this term cannot be used to 

exert jurisdiction over areas that are not 

subject to Section 404 of the Clean 

Water Act. 

As stated in the preamble to the 

September 26, 2006, Federal Register 

notice, the purpose of this definition is 

not to identify which waterbodies are 

jurisdictional, but to clarify how waters 

of the United States are grouped into 

waterbodies, especially for the purposes 

of implementing 33 CFR 330.2(i), which 

addresses single and complete projects 

for the NWPs. We agree, and have 

clarified in the definition, that only 

jurisdictional waters can be waterbodies 

for purposes of the NWPs. 


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One commenter asked for a list of 

other indicators to identify a waterbody 

and exert jurisdiction. One commenter 

requested that ‘‘adjacent’’ be defined. 

One commenter inquired how the loss 

of waters calculation will be made when 

wetlands and waterbodies that are 

considered a single aquatic unit. 

It would not be appropriate to 

promulgate, through the NWP issuance 

process, a list of indicators to be used 

to identify waterbodies subject to 

regulatory jurisdiction. The term 

‘‘adjacent’’ is defined at 33 CFR 

328.3(c). District engineers will 

determine, on a case-by-case basis, 

when waterbodies are separate for the 

purposes of identifying single and 

complete projects. We note that, except 

in the case of linear crossings (see 

definition of ‘‘single and complete 

project’’), all losses of waters of the 

United States, whether separate water 

bodies or not, are added together to 

determine whether an activity is a single 

and complete project that meets the 

acreage thresholds. The definition is 

adopted as proposed. 

Administrative Requirements 

Regulatory Flexibility Act 

One commenter objected to the 

proposed certification for Regulatory 

Flexibility Act compliance, and 

indicated that a Regulatory Impact 

Analysis is necessary. This commenter 

stated that the Corps failed to analyze 

the costs or other burdens that NWP 

impose on small entities, and compare 

those costs or burdens to alternatives. 

The commenter also said that the Corps 

needs to consider burdens placed on 

those small entities that need to get 

individual permits, since the proposed 

NWPs determine who qualifies for 

NWPs, as well as those who must get 

individual permits. One commenter said 

that an initial regulatory flexibility 

analysis must be provided for public 

comment, and stated that the Corps 

must withdraw the proposed NWPs and 

make an initial regulatory flexibility 

analysis available for public review and 

comment. 

Our Regulatory Flexibility Act 

certification was done in the context of 

the statutory requirements underlying 

the NWP program: the permit 

requirements under Section 404 of the 

Clean Water Act and Section 10 of the 

Rivers and Harbors Act of 1899. The 

NWPs (or any other general permits) can 

only authorize activities with minimal 

individual and cumulative adverse 

effects on the environment; other 

activities must obtain individual 

permits. Because the permitted impacts 

are minimal, the burden on permittees 

for obtaining coverage under the NWP is 

also low. Generally, permittees are 

required to submit a pre-construction 

notification and adopt common sense, 

low-cost practices to ensure that adverse 

effects are minimal. Larger projects are 

also required to provide compensatory 

mitigation, but the scope of mitigation is 

commensurate with the impacts of the 

project and usually does not constitute 

a ‘‘significant economic impact.’’

Further, such larger projects are less 

likely to be undertaken by small 

businesses. We continue to believe that 

our certification that the NWPs will not 

have a significant economic impact on 

a substantial number of small entities is 

appropriate. As a result, a formal 

Regulatory Flexibility Analysis is not 

required. 

Unfunded Mandates 

One commenter said that the Corps 

must provide a quantified assessment of 

costs and benefits of the permits (rule), 

in accordance with the Unfunded 

Mandates Reform Act. The costs of these 

permits (mostly paperwork costs 

associated with filing pre-construction 

notifications, estimated at 10 hours per 

pre-construction notification) do not 

rise to the level of an unfunded 

mandate, as defined in the statute. As a 

result, it is not necessary under UMRA 

to quantify the costs and benefits of this 

action. 

Paperwork Reduction Act 

A commenter stated that the estimate 

of time required to prepare a complete 

pre-construction notification is too low, 

because of the requirement to submit a 

delineation of waters of the United 

States with the pre-construction 

notification. 

We believe the time estimates are 

accurate, because many activities will 

not require a complex delineation of 

waters of the United States. Most preconstruction notifications will have 

simple delineations showing the 

locations of waters near the project. The 

estimated time is an average for all 

projects. 

Regional Conditioning of the 

Nationwide Permits 

Concurrent with this Federal Register 

notice, district engineers are issuing 

local public notices. In addition to the 

changes to some NWPs and NWP 

conditions required by the Chief of 

Engineers, division and district 

engineers may propose regional 

conditions or propose revocation of 

NWP authorization for all, some, or 

portions of the NWPs. Regional 

conditions may also be required by state 

or Tribal water quality certification or 

for state Coastal Zone Management Act 

consistency. District engineers will 

announce regional conditions or 

revocations by issuing local public 

notices. Information on regional 

conditions and revocation can be 

obtained from the appropriate district 

engineer, as indicated below. 

Furthermore, this and additional 

information can be obtained on the 

Internet at http://www.usace.army.mil/ 

where.html#State by clicking on the 

appropriate district office. 

Contact Information for Corps District 

Engineers 

Alabama 

Mobile District Engineer, ATTN: 

CESAM–RD, 109 St. Joseph Street, 

Mobile, AL 36602–3630. 

Alaska 

Alaska District Engineer, ATTN: 

CEPOA–CO–R, P.O. Box 6898, 

Elmendorf AFB, AK 99506–6898. 

Arizona 

Los Angeles District Engineer, ATTN: 

CESPL–CO–R, P.O. Box 532711, Los 

Angeles, CA 90053–2325. 

Arkansas 

Little Rock District Engineer, ATTN: 

CESWL–RO, P.O. Box 867, Little 

Rock, AR 72203–0867. 

California 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 1325 J Street, 

Sacramento, CA 95814–2922. 

Colorado 

Albuquerque District Engineer, ATTN: 

CESPA–OD–R, 4101 Jefferson Plaza 

NE, Albuquerque, NM 87109–3435. 

Connecticut 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Delaware 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker 

Building, 100 Penn Square East 

Philadelphia, PA 19107–3390. 

Florida 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P.O. Box 4970, 

Jacksonville, FL 32232–0019. 

Georgia 

Savannah District Engineer, ATTN: 

CESAS–OP–F, P.O. Box 889, 

Savannah, GA 31402–0889. 


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Hawaii 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440. 

Idaho 

Walla Walla District Engineer, ATTN: 

CENWW–RD, 201 North Third 

Avenue, Walla Walla, WA 99362–

1876. 

Illinois 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004. 

Indiana 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059. 

Iowa 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004. 

Kansas 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 700 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896. 

Kentucky 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059. 

Louisiana 

New Orleans District Engineer, ATTN: 

CEMVN–OD–S, P.O. Box 60267, New 

Orleans, LA 70160–0267. 

Maine 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Maryland 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Massachusetts 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Michigan 

Detroit District Engineer, ATTN: 

CELRE–RG, P.O. Box 1027, Detroit, 

MI 48231–1027. 

Minnesota 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 190 Fifth Street East, 

St. Paul, MN 55101–1638. 

Mississippi 

Vicksburg District Engineer, ATTN: 

CEMVK–OD–F, 4155 Clay Street, 

Vicksburg, MS 39183–3435. 

Missouri 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 700 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896. 

Montana 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th 

Street, Omaha, NE 68102–1618. 

Nebraska 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th 

Street, Omaha, NE 68102–1618. 

Nevada 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 1325 J Street, 

Sacramento, CA 95814–2922. 

New Hampshire 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

New Jersey 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker 

Building, 100 Penn Square East, 

Philadelphia, PA 19107–3390. 

New Mexico 

Albuquerque District Engineer, ATTN: 

CESPA–OD–R, 4101 Jefferson Plaza 

NE, Albuquerque, NM 87109–3435. 

New York 

New York District Engineer, ATTN: 

CENAN–OP–R, 26 Federal Plaza, New 

York, NY 10278–0090. 

North Carolina 

Wilmington District Engineer, ATTN: 

CESAW–RG, P.O. Box 1890, 

Wilmington, NC 28402–1890. 

North Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th 

Street, Omaha, NE 68102–1618. 

Ohio 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070. 

Oklahoma 

Tulsa District Engineer, ATTN: CESWT–

RO, 1645 S. 101st East Ave, Tulsa, OK 

74128–4609. 

Oregon 

Portland District Engineer, ATTN: 

CENWP–OD–G, P.O. Box 2946, 

Portland, OR 97208–2946. 

Pennsylvania 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Rhode Island 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

South Carolina 

Charleston District Engineer, ATTN: 

CESAC–CO–P, 69A Hagood Ave, 

Charleston, SC 29403–5107. 

South Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th 

Street, Omaha, NE 68102–1618. 

Tennessee 

Nashville District Engineer, ATTN: 

CELRN–OP–F, 3701 Bell Road, 

Nashville, TN 37214. 

Texas 

Galveston District Engineer, ATTN: 

CESWG–PE–R, P.O. Box 1229, 

Galveston, TX 77553–1229. 

Utah 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 1325 J Street, CA 

95814–2922. 

Vermont 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Virginia 

Norfolk District Engineer, ATTN: 

CENAO–OP–R, 803 Front Street, 

Norfolk, VA 23510–1096. 

Washington 

Seattle District Engineer, ATTN: 

CENWS–OP–RG, P.O. Box 3755, 

Seattle, WA 98124–3755. 

West Virginia 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070. 

Wisconsin 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 190 Fifth Street East, 

St. Paul, MN 55101–1638. 

Wyoming 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th 

Street, Omaha, NE 68102–1618. 


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District of Columbia 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Pacific Territories (American Samoa, 

Guam, & Commonwealth of the 

Northern Mariana Islands) 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440. 

Puerto Rico and Virgin Islands 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P.O. Box 4970, 

Jacksonville, FL 32232–0019. 

Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998, (63 FR 31855) regarding plain 

language, this preamble is written using 

plain language. The use of ‘‘we’’ in this 

notice refers to the Corps. We have also 

used the active voice, short sentences, 

and common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

These NWPs will increase the number 

of permittees who are required to 

submit a pre-construction notification. 

The content of the pre-construction 

notification is not changed from the 

current NWPs, but the paperwork 

burden will increase because of the 

increased number of pre-construction 

notifications submitted. The Corps 

estimates the increased paperwork 

burden at 4,500 hours per year. This is 

based on an average burden to complete 

and submit a pre-construction 

notification of 10 hours, and an 

estimated 450 additional projects that 

will require pre-construction 

notifications. Prospective permittees 

who are required to submit a preconstruction notification for a particular 

NWP, or who are requesting verification 

that a particular activity qualifies for 

NWP authorization, may use the current 

standard Department of the Army 

permit application form or submit the 

required information in a letter. The 

total burden for filing pre-construction 

notifications is estimated at 300,000 

hours per year (10 hours times 30,000 

projects per year requiring preconstruction notification). In addition, 

we are adding a requirement for existing 

aquaculture activities using NWP 48 

that do not require a pre-construction 

notification to instead file a short report 

indicating basic information about the 

existing shellfish production operation. 

The estimated burden for this new 

requirement is 1,800 hours per year (900 

existing aquaculture facilities times 2 

hours per report). The information in 

the report is a subset of the information 

required for a full pre-construction 

notification. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. For the Corps 

Regulatory Program under Section 10 of 

the Rivers and Harbors Act of 1899, 

Section 404 of the Clean Water Act, and 

Section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, 

the current OMB approval number for 

information collection requirements is 

maintained by the Corps of Engineers 

(OMB approval number 0710–0003, 

which expires on April 30, 2008). 

Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), we must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

review by OMB and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, we have determined that 

this action is a ‘‘significant regulatory 

action’’ and it was submitted to OMB for 

review. 

Executive Order 13132 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the Corps to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The issuance of NWPs 

does not have federalism implications. 

We do not believe that the NWPs will 

have substantial direct effects on the 

States, on the relationship between the 

Federal government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. The NWPs will 

not impose any additional substantive 

obligations on State or local 

governments. Therefore, Executive 

Order 13132 does not apply to these 

final NWPs. 

Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 601 et seq. 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of the proposed issuance and 

modification of NWPs on small entities, 

a small entity is defined as: (1) A small 

business based on Small Business 

Administration size standards; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

The statutes under which the Corps 

issues, reissues, or modifies NWPs are 

Section 404(e) of the Clean Water Act 

(33 U.S.C. 1344(e)) and Section 10 of the 

Rivers and Harbors Act of 1899 (33 

U.S.C. 403). Under section 404, 

Department of the Army (DA) permits 

are required for discharges of dredged or 

fill material into waters of the United 

States. Under section 10, DA permits are 

required for any structures or other 

work that affect the course, location, or 

condition of navigable waters of the 

United States. Small entities proposing 

to discharge dredged or fill material into 

waters of the United States and/or 

conduct work in navigable waters of the 

United States must obtain DA permits to 

conduct those activities, unless a 

particular activity is exempt from those 

permit requirements. Individual permits 

and general permits can be issued by the 

Corps to satisfy the permit requirements 

of these two statutes. Nationwide 

permits are a form of general permit 

issued by the Chief of Engineers. 


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Nationwide permits automatically 

expire and become null and void if they 

are not modified or reissued within five 

years of their effective date (see 33 CFR 

330.6(b)). Furthermore, Section 404(e) of 

the Clean Water Act states that general 

permits, including NWPs, can be issued 

for no more than 5 years. If the current 

NWPs are not reissued small entities 

and other project proponents would be 

required to obtain alternative forms of 

DA permits (i.e., standard permits, 

letters of permission, or regional general 

permits) for activities involving 

discharges of dredged or fill material 

into waters of the United States or 

structures or work in navigable waters 

of the United States. Regional general 

permits that authorize similar activities 

as the NWPs may be available in some 

geographic areas, so small entities 

conducting regulated activities outside 

those geographic areas would have to 

obtain individual permits for activities 

that require DA permits. 

Nationwide permits help relieve 

regulatory burdens on small entities 

who need to obtain DA permits. They 

provide an expedited form of 

authorization, provided the project 

proponent meets all terms and 

conditions of the NWPs. In FY 2003, the 

Corps issued 35,317 NWP verifications, 

with an average processing time of 27 

days. Those numbers do not include 

activities that are authorized by NWP, 

where the project proponent was not 

required to submit a pre-construction 

notification or did not voluntarily seek 

verification that an activity qualified for 

NWP authorization. The average 

processing times for the 4,035 standard 

permits and the 3,040 letters of 

permission issued during FY 2003 were 

187 days and 89 days, respectively. The 

NWPs issued today are expected to 

result in a slight increase in the 

numbers of activities potentially 

qualifying for NWP authorization. The 

estimated numbers of activities 

qualifying for NWP authorization are 

provided in the decision documents that 

were prepared for each NWP. The NWPs 

issued today are not expected to 

significantly increase cost or paperwork 

burden for authorized activities (relative 

to the NWPs issued in 2002), including 

those conducted by small businesses. 

The costs for obtaining coverage 

under an NWP are low. We estimate the 

average time to prepare and file a preconstruction notification, for those 

activities where a pre-construction 

notification is required, is 10 hours. We 

do not believe this constitutes a 

‘‘significant economic impact’’ on 

project proponents, including small 

businesses. 

Another requirement of Section 404(e) 

of the Clean Water Act is that general 

permits, including NWPs, authorize 

only those activities that result in 

minimal adverse environmental effects, 

individually and cumulatively. The 

terms and conditions of the NWPs, such 

as acreage or linear foot limits, are 

imposed to ensure that the NWPs 

authorize only those activities that 

result in minimal adverse effects on the 

aquatic environment and other public 

interest review factors. In addition to 

the paperwork burden of filing a preconstruction notification, many NWPs 

require that low-cost, common sense 

practices be used to minimize adverse 

effects. These requirements also do not 

constitute ‘‘significant economic 

impacts.’’

After considering the economic 

impacts of these NWPs on small 

entities, I certify that this action will not 

have a significant impact on a 

substantial number of small entities. 

Small entities may obtain required DA 

authorizations through the NWPs, in 

cases where there are applicable NWPs 

authorizing those activities and the 

proposed work will result in minimal 

adverse effects on the aquatic 

environment and other public interest 

review factors. The terms and 

conditions of these NWPs will not 

impose substantially higher costs on 

small entities than those of the previous 

NWPs. If an NWP is not available to 

authorize a particular activity, then 

another form of DA authorization, such 

as an individual permit or regional 

general permit, must be secured. 

However, as noted above, we expect a 

slight increase in the number of 

activities than can be authorized 

through NWPs, because we have issued 

several new NWPs, and we are 

removing some limitations in existing 

NWPs and replacing them with preconstruction notification requirements 

that will allow the district engineer to 

judge whether any adverse effects of the 

proposed project are more than 

minimal, and authorize the project 

under an NWP if they are not. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under Section 202 of the UMRA, 

the agencies generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating a rule for which a written 

statement is needed, Section 205 of the 

UMRA generally requires the agencies 

to identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows an agency 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation why that alternative was 

not adopted. Before an agency 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed, 

under Section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of regulatory proposals 

with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determined that the NWPs 

issued today do not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. The NWPs are generally 

consistent with current agency practice, 

do not impose new substantive 

requirements and therefore do not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and Tribal 

governments, in the aggregate, or the 

private sector in any one year. 

Therefore, the NWPs issued today are 

not subject to the requirements of 

Sections 202 and 205 of the UMRA. For 

the same reasons, we have determined 

that the NWPs contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Therefore, the proposed issuance and 

modification of NWPs is not subject to 

the requirements of Section 203 of 

UMRA. 

Executive Order 13045 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), applies to any rule that: 

(1) Is determined to be ‘‘economically 


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significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the proposed 

rule on children, and explain why the 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives. 

The NWPs issued today are not 

subject to this Executive Order because 

they are not economically significant as 

defined in Executive Order 12866. In 

addition, these NWPs do not concern an 

environmental or safety risk that we 

have reason to believe may have a 

disproportionate effect on children. 

Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ The phrase 

‘‘policies that have tribal implications’’

is defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

the Indian tribes, or on the distribution 

of power and responsibilities between 

the Federal government and Indian 

tribes.’’

The NWPs issued today do not have 

tribal implications. They are generally 

consistent with current agency practice 

and will not have substantial direct 

effects on tribal governments, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes. 

Therefore, Executive Order 13175 does 

not apply to this proposal. Corps 

districts are conducting government-togovernment consultation with Indian 

tribes to develop regional conditions 

that help protect tribal rights and trust 

resources, and to facilitate compliance 

with general condition 16, Tribal Rights. 

Environmental Documentation 

A decision document, which includes 

an environmental assessment and 

Finding of No Significant Impact 

(FONSI), has been prepared for each 

NWP. These decision documents are 

available at: http://www.regulations.gov 

(docket ID number COE–2006–0005). 

They are also available by contacting 

Headquarters, U.S. Army Corps of 

Engineers, Operations and Regulatory 

Community of Practice, 441 G Street, 

NW., Washington, DC 20314–1000. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We will submit a 

report containing the final NWPs and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States. A major 

rule cannot take effect until 60 days 

after it is published in the Federal 

Register. The proposed NWPs are not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Executive Order 12898 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each Federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each federal 

agency conduct its programs, policies, 

and activities that substantially affect 

human health or the environment in a 

manner that ensures that such programs, 

policies, and activities do not have the 

effect of excluding persons (including 

populations) from participation in, 

denying persons (including 

populations) the benefits of, or 

subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, or national 

origin. 

The NWPs issued today are not 

expected to negatively impact any 

community, and therefore are not 

expected to cause any 

disproportionately high and adverse 

impacts to minority or low-income 

communities. 

Executive Order 13211 

The proposed NWPs are not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Authority 

We are issuing new NWPs, modifying 

existing NWPs, and reissuing NWPs 

without change under the authority of 

Section 404(e) of the Clean Water Act 

(33 U.S.C. 1344) and Section 10 of the 

Rivers and Harbors Act of 1899 (33 

U.S.C. 401 et seq.). 

Dated: March 1, 2007. 

Don T. Riley, 

Major General, U.S. Army, Director of Civil 

Works. 

Nationwide Permits, Conditions, 

Further Information, and Definitions 

A. Index of Nationwide Permits, 

Conditions, Further Information, and 

Definitions 

Nationwide Permits 

1. Aids to Navigation. 

2. Structures in Artificial Canals. 

3. Maintenance. 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. 

5. Scientific Measurement Devices. 

6. Survey Activities. 

7. Outfall Structures and Associated Intake 

Structures. 

8. Oil and Gas Structures on the Outer 

Continental Shelf. 

9. Structures in Fleeting and Anchorage 

Areas. 

10. Mooring Buoys. 

11. Temporary Recreational Structures. 

12. Utility Line Activities. 

13. Bank Stabilization. 

14. Linear Transportation Projects. 

15. U.S. Coast Guard Approved Bridges. 

16. Return Water From Upland Contained 

Disposal Areas. 

17. Hydropower Projects. 

18. Minor Discharges. 

19. Minor Dredging 

20. Oil Spill Cleanup. 

21. Surface Coal Mining Operations. 

22. Removal of Vessels. 

23. Approved Categorical Exclusions. 

24. Indian Tribe or State Administered 

Section 404 Programs. 

25. Structural Discharges. 

26. [Reserved]. 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. 

28. Modifications of Existing Marinas. 

29. Residential Developments. 

30. Moist Soil Management for Wildlife. 

31. Maintenance of Existing Flood Control 

Facilities. 

32. Completed Enforcement Actions. 

33. Temporary Construction, Access, and 

Dewatering. 

34. Cranberry Production Activities. 

35. Maintenance Dredging of Existing Basins. 

36. Boat Ramps. 

37. Emergency Watershed Protection and 

Rehabilitation. 

38. Cleanup of Hazardous and Toxic Waste. 

39. Commercial and Institutional 

Developments. 

40. Agricultural Activities. 


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41. Reshaping Existing Drainage Ditches. 

42. Recreational Facilities. 

43. Stormwater Management Facilities. 

44. Mining Activities. 

45. Repair of Uplands Damaged by Discrete 

Events. 

46. Discharges in Ditches. 

47. Pipeline Safety Program Designated Time 

Sensitive Inspections and Repairs. 

48. Existing Commercial Shellfish 

Aquaculture Activities. 

49. Coal Remining Activities. 

50. Underground Coal Mining Activities. 

Nationwide Permit General Conditions 

1. Navigation. 

2. Aquatic Life Movements. 

3. Spawning Areas. 

4. Migratory Bird Breeding Areas. 

5. Shellfish Beds. 

6. Suitable Material. 

7. Water Supply Intakes. 

8. Adverse Effects from Impoundments. 

9. Management of Water Flows. 

10. Fills Within 100-Year Floodplains. 

11. Equipment. 

12. Soil Erosion and Sediment Controls. 

13. Removal of Temporary Fills. 

14. Proper Maintenance. 

15. Wild and Scenic Rivers. 

16. Tribal Rights. 

17. Endangered Species. 

18. Historic Properties. 

19. Designated Critical Resource Waters. 

20. Mitigation. 

21. Water Quality. 

22. Coastal Zone Management. 

23. Regional and Case-by-Case Conditions. 

24. Use of Multiple Nationwide Permits. 

25. Transfer of Nationwide Permit 

Verifications. 

26. Compliance Certification. 

27. Pre-Construction Notification. 

28. Single and Complete Project. 

Further Information 

Definitions. 

Best management practices (BMPs). 

Compensatory mitigation. 

Currently serviceable. 

Discharge. 

Enhancement. 

Ephemeral stream. 

Establishment (creation). 

Historic property. 

Independent utility. 

Intermittent stream. 

Loss of waters of the United States. 

Non-tidal wetland. 

Open water. 

Ordinary high water mark. 

Perennial stream. 

Practicable. 

Pre-construction notification. 

Preservation. 

Re-establishment. 

Rehabilitation. 

Restoration. 

Riffle and pool complex. 

Riparian areas. 

Shellfish seeding. 

Single and complete project. 

Stormwater management. 

Stormwater management facilities. 

Stream bed. 

Stream channelization. 

Structure. 

Tidal wetland. 

Vegetated shallows. 

Waterbody. 

B. Nationwide Permits 

1. Aids to Navigation. The placement 

of aids to navigation and regulatory 

markers which are approved by and 

installed in accordance with the 

requirements of the U.S. Coast Guard 

(see 33 CFR, chapter I, subchapter C, 

part 66). (Section 10) 

2. Structures in Artificial Canals. 

Structures constructed in artificial 

canals within principally residential 

developments where the connection of 

the canal to a navigable water of the 

United States has been previously 

authorized (see 33 CFR 322.5(g)). 

(Section 10) 

3. Maintenance. (a) The repair, 

rehabilitation, or replacement of any 

previously authorized, currently 

serviceable, structure, or fill, or of any 

currently serviceable structure or fill 

authorized by 33 CFR 330.3, provided 

that the structure or fill is not to be put 

to uses differing from those uses 

specified or contemplated for it in the 

original permit or the most recently 

authorized modification. Minor 

deviations in the structure’s 

configuration or filled area, including 

those due to changes in materials, 

construction techniques, or current 

construction codes or safety standards 

that are necessary to make the repair, 

rehabilitation, or replacement are 

authorized. This NWP authorizes the 

repair, rehabilitation, or replacement of 

those structures or fills destroyed or 

damaged by storms, floods, fire or other 

discrete events, provided the repair, 

rehabilitation, or replacement is 

commenced, or is under contract to 

commence, within two years of the date 

of their destruction or damage. In cases 

of catastrophic events, such as 

hurricanes or tornadoes, this two-year 

limit may be waived by the district 

engineer, provided the permittee can 

demonstrate funding, contract, or other 

similar delays. 

(b) This NWP also authorizes the 

removal of accumulated sediments and 

debris in the vicinity of and within 

existing structures (e.g., bridges, 

culverted road crossings, water intake 

structures, etc.) and the placement of 

new or additional riprap to protect the 

structure. The removal of sediment is 

limited to the minimum necessary to 

restore the waterway in the immediate 

vicinity of the structure to the 

approximate dimensions that existed 

when the structure was built, but cannot 

extend further than 200 feet in any 

direction from the structure. This 200 

foot limit does not apply to maintenance 

dredging to remove accumulated 

sediments blocking or restricting outfall 

and intake structures or to maintenance 

dredging to remove accumulated 

sediments from canals associated with 

outfall and intake structures. All 

dredged or excavated materials must be 

deposited and retained in an upland 

area unless otherwise specifically 

approved by the district engineer under 

separate authorization. The placement 

of riprap must be the minimum 

necessary to protect the structure or to 

ensure the safety of the structure. Any 

bank stabilization measures not directly 

associated with the structure will 

require a separate authorization from 

the district engineer. 

(c) This NWP also authorizes 

temporary structures, fills, and work 

necessary to conduct the maintenance 

activity. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 

must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

(d) This NWP does not authorize 

maintenance dredging for the primary 

purpose of navigation or beach 

restoration. This NWP does not 

authorize new stream channelization or 

stream relocation projects. 

Notification: For activities authorized 

by paragraph (b) of this NWP, the 

permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity (see general condition 27). 

Where maintenance dredging is 

proposed, the pre-construction 

notification must include information 

regarding the original design capacities 

and configurations of the outfalls, 

intakes, small impoundments, and 

canals. (Sections 10 and 404) 

Note: This NWP authorizes the repair, 

rehabilitation, or replacement of any 

previously authorized structure or fill that 

does not qualify for the Clean Water Act 

Section 404(f) exemption for maintenance. 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. Fish and wildlife 

harvesting devices and activities such as 

pound nets, crab traps, crab dredging, 

eel pots, lobster traps, duck blinds, and 


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clam and oyster digging, and small fish 

attraction devices such as open water 

fish concentrators (sea kites, etc.). This 

NWP does not authorize artificial reefs 

or impoundments and semiimpoundments of waters of the United 

States for the culture or holding of 

motile species such as lobster, or the use 

of covered oyster trays or clam racks. 

(Sections 10 and 404) 

5. Scientific Measurement Devices. 

Devices, whose purpose is to measure 

and record scientific data, such as staff 

gages, tide gages, water recording 

devices, water quality testing and 

improvement devices, and similar 

structures. Small weirs and flumes 

constructed primarily to record water 

quantity and velocity are also 

authorized provided the discharge is 

limited to 25 cubic yards. (Sections 10 

and 404) 

6. Survey Activities. Survey activities, 

such as core sampling, seismic 

exploratory operations, plugging of 

seismic shot holes and other 

exploratory-type bore holes, exploratory 

trenching, soil surveys, sampling, and 

historic resources surveys. For the 

purposes of this NWP, the term 

‘‘exploratory trenching’’ means 

mechanical land clearing of the upper 

soil profile to expose bedrock or 

substrate, for the purpose of mapping or 

sampling the exposed material. The area 

in which the exploratory trench is dug 

must be restored to its pre-construction 

elevation upon completion of the work. 

In wetlands, the top 6 to 12 inches of 

the trench should normally be 

backfilled with topsoil from the trench. 

This NWP authorizes the construction 

of temporary pads, provided the 

discharge does not exceed 25 cubic 

yards. Discharges and structures 

associated with the recovery of historic 

resources are not authorized by this 

NWP. Drilling and the discharge of 

excavated material from test wells for 

oil and gas exploration are not 

authorized by this NWP; the plugging of 

such wells is authorized. Fill placed for 

roads and other similar activities is not 

authorized by this NWP. The NWP does 

not authorize any permanent structures. 

The discharge of drilling mud and 

cuttings may require a permit under 

Section 402 of the Clean Water Act. 

(Sections 10 and 404) 

7. Outfall Structures and Associated 

Intake Structures. Activities related to 

the construction or modification of 

outfall structures and associated intake 

structures, where the effluent from the 

outfall is authorized, conditionally 

authorized, or specifically exempted by, 

or that are otherwise in compliance with 

regulations issued under the National 

Pollutant Discharge Elimination System 

Program (Section 402 of the Clean Water 

Act). The construction of intake 

structures is not authorized by this 

NWP, unless they are directly associated 

with an authorized outfall structure. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Sections 10 and 404) 

8. Oil and Gas Structures on the Outer 

Continental Shelf. Structures for the 

exploration, production, and 

transportation of oil, gas, and minerals 

on the outer continental shelf within 

areas leased for such purposes by the 

Department of the Interior, Minerals 

Management Service. Such structures 

shall not be placed within the limits of 

any designated shipping safety fairway 

or traffic separation scheme, except 

temporary anchors that comply with the 

fairway regulations in 33 CFR 322.5(l). 

The district engineer will review such 

proposals to ensure compliance with the 

provisions of the fairway regulations in 

33 CFR 322.5(l). Any Corps review 

under this NWP will be limited to the 

effects on navigation and national 

security in accordance with 33 CFR 

322.5(f). Such structures will not be 

placed in established danger zones or 

restricted areas as designated in 33 CFR 

part 334, nor will such structures be 

permitted in EPA or Corps designated 

dredged material disposal areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Section 10) 

9. Structures in Fleeting and 

Anchorage Areas. Structures, buoys, 

floats and other devices placed within 

anchorage or fleeting areas to facilitate 

moorage of vessels where the U.S. Coast 

Guard has established such areas for 

that purpose. (Section 10) 

10. Mooring Buoys. Non-commercial, 

single-boat, mooring buoys. (Section 10) 

11. Temporary Recreational 

Structures. Temporary buoys, markers, 

small floating docks, and similar 

structures placed for recreational use 

during specific events such as water 

skiing competitions and boat races or 

seasonal use, provided that such 

structures are removed within 30 days 

after use has been discontinued. At 

Corps of Engineers reservoirs, the 

reservoir manager must approve each 

buoy or marker individually. (Section 

10) 

12. Utility Line Activities. Activities 

required for the construction, 

maintenance, repair, and removal of 

utility lines and associated facilities in 

waters of the United States, provided 

the activity does not result in the loss 

of greater than 1⁄2 acre of waters of the 

United States. 

Utility lines: This NWP authorizes the 

construction, maintenance, or repair of 

utility lines, including outfall and 

intake structures, and the associated 

excavation, backfill, or bedding for the 

utility lines, in all waters of the United 

States, provided there is no change in 

pre-construction contours. A ‘‘utility 

line’’ is defined as any pipe or pipeline 

for the transportation of any gaseous, 

liquid, liquescent, or slurry substance, 

for any purpose, and any cable, line, or 

wire for the transmission for any 

purpose of electrical energy, telephone, 

and telegraph messages, and radio and 

television communication. The term 

‘‘utility line’’ does not include activities 

that drain a water of the United States, 

such as drainage tile or french drains, 

but it does apply to pipes conveying 

drainage from another area. 

Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided the 

material is not placed in such a manner 

that it is dispersed by currents or other 

forces. The district engineer may extend 

the period of temporary side casting for 

no more than a total of 180 days, where 

appropriate. In wetlands, the top 6 to 12 

inches of the trench should normally be 

backfilled with topsoil from the trench. 

The trench cannot be constructed or 

backfilled in such a manner as to drain 

waters of the United States (e.g., 

backfilling with extensive gravel layers, 

creating a french drain effect). Any 

exposed slopes and stream banks must 

be stabilized immediately upon 

completion of the utility line crossing of 

each waterbody. 

Utility line substations: This NWP 

authorizes the construction, 

maintenance, or expansion of substation 

facilities associated with a power line or 

utility line in non-tidal waters of the 

United States, provided the activity, in 

combination with all other activities 

included in one single and complete 

project, does not result in the loss of 

greater than 1⁄2 acre of waters of the 

United States. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct, maintain, or 

expand substation facilities. 

Foundations for overhead utility line 

towers, poles, and anchors: This NWP 

authorizes the construction or 

maintenance of foundations for 

overhead utility line towers, poles, and 

anchors in all waters of the United 

States, provided the foundations are the 

minimum size necessary and separate 

footings for each tower leg (rather than 


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a larger single pad) are used where 

feasible. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of utility 

lines, including overhead power lines 

and utility line substations, in non-tidal 

waters of the United States, provided 

the total discharge from a single and 

complete project does not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters 

for access roads. Access roads must be 

the minimum width necessary (see Note 

2, below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize utility lines 

in or affecting navigable waters of the 

United States even if there is no 

associated discharge of dredged or fill 

material (See 33 CFR part 322). 

Overhead utility lines constructed over 

section 10 waters and utility lines that 

are routed in or under section 10 waters 

without a discharge of dredged or fill 

material require a section 10 permit. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

conduct the utility line activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The areas affected by temporary fills 

must be revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if any of the 

following criteria are met: (1) The 

activity involves mechanized land 

clearing in a forested wetland for the 

utility line right-of-way; (2) a section 10 

permit is required; (3) the utility line in 

waters of the United States, excluding 

overhead lines, exceeds 500 feet; (4) the 

utility line is placed within a 

jurisdictional area (i.e., water of the 

United States), and it runs parallel to a 

stream bed that is within that 

jurisdictional area; (5) discharges that 

result in the loss of greater than 1⁄10-acre 

of waters of the United States; (6) 

permanent access roads are constructed 

above grade in waters of the United 

States for a distance of more than 500 

feet; or (7) permanent access roads are 

constructed in waters of the United 

States with impervious materials. (See 

general condition 27.) (Sections 10 and 

404) 

Note 1: Where the proposed utility line is 

constructed or installed in navigable waters 

of the United States (i.e., section 10 waters), 

copies of the pre-construction notification 

and NWP verification will be sent by the 

Corps to the National Oceanic and 

Atmospheric Administration (NOAA), 

National Ocean Service (NOS), for charting 

the utility line to protect navigation. 

Note 2: Access roads used for both 

construction and maintenance may be 

authorized, provided they meet the terms and 

conditions of this NWP. Access roads used 

solely for construction of the utility line must 

be removed upon completion of the work, 

accordance with the requirements for 

temporary fills. 

Note 3: Pipes or pipelines used to transport 

gaseous, liquid, liquescent, or slurry 

substances over navigable waters of the 

United States are considered to be bridges, 

not utility lines, and may require a permit 

from the U.S. Coast Guard pursuant to 

Section 9 of the Rivers and Harbors Act of 

1899. However, any discharges of dredged or 

fill material into waters of the United States 

associated with such pipelines will require a 

section 404 permit (see NWP 15). 

13. Bank Stabilization. Bank 

stabilization activities necessary for 

erosion prevention, provided the 

activity meets all of the following 

criteria: 

(a) No material is placed in excess of 

the minimum needed for erosion 

protection; 

(b) The activity is no more than 500 

feet in length along the bank, unless this 

criterion is waived in writing by the 

district engineer; 

(c) The activity will not exceed an 

average of one cubic yard per running 

foot placed along the bank below the 

plane of the ordinary high water mark 

or the high tide line, unless this 

criterion is waived in writing by the 

district engineer; 

(d) The activity does not involve 

discharges of dredged or fill material 

into special aquatic sites, unless this 

criterion is waived in writing by the 

district engineer; 

(e) No material is of the type, or is 

placed in any location, or in any 

manner, to impair surface water flow 

into or out of any water of the United 

States; 

(f) No material is placed in a manner 

that will be eroded by normal or 

expected high flows (properly anchored 

trees and treetops may be used in low 

energy areas); and, (g) The activity is not 

a stream channelization activity. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if the bank 

stabilization activity: (1) Involves 

discharges into special aquatic sites; (2) 

is in excess of 500 feet in length; or (3) 

will involve the discharge of greater 

than an average of one cubic yard per 

running foot along the bank below the 

plane of the ordinary high water mark 

or the high tide line. (See general 

condition 27.) (Sections 10 and 404) 

14. Linear Transportation Projects. 

Activities required for the construction, 

expansion, modification, or 

improvement of linear transportation 

projects (e.g., roads, highways, railways, 

trails, airport runways, and taxiways) in 

waters of the United States. For linear 

transportation projects in non-tidal 

waters, the discharge cannot cause the 

loss of greater than 1⁄2-acre of waters of 

the United States. For linear 

transportation projects in tidal waters, 

the discharge cannot cause the loss of 

greater than 1⁄3-acre of waters of the 

United States. Any stream channel 

modification, including bank 

stabilization, is limited to the minimum 

necessary to construct or protect the 

linear transportation project; such 

modifications must be in the immediate 

vicinity of the project. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

construct the linear transportation 

project. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 

must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

This NWP cannot be used to authorize 

non-linear features commonly 

associated with transportation projects, 

such as vehicle maintenance or storage 

buildings, parking lots, train stations, or 

aircraft hangars. 


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Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The loss 

of waters of the United States exceeds 

1⁄10 acre; or (2) there is a discharge in 

a special aquatic site, including 

wetlands. (See general condition 27.) 

(Sections 10 and 404) 

Note: Some discharges for the construction 

of farm roads or forest roads, or temporary 

roads for moving mining equipment, may 

qualify for an exemption under Section 404(f) 

of the Clean Water Act (see 33 CFR 323.4). 

15. U.S. Coast Guard Approved 

Bridges. Discharges of dredged or fill 

material incidental to the construction 

of bridges across navigable waters of the 

United States, including cofferdams, 

abutments, foundation seals, piers, and 

temporary construction and access fills, 

provided such discharges have been 

authorized by the U.S. Coast Guard as 

part of the bridge permit. Causeways 

and approach fills are not included in 

this NWP and will require a separate 

section 404 permit. (Section 404) 

16. Return Water From Upland 

Contained Disposal Areas. Return water 

from an upland contained dredged 

material disposal area. The return water 

from a contained disposal area is 

administratively defined as a discharge 

of dredged material by 33 CFR 323.2(d), 

even though the disposal itself occurs 

on the upland and does not require a 

section 404 permit. This NWP satisfies 

the technical requirement for a section 

404 permit for the return water where 

the quality of the return water is 

controlled by the state through the 

section 401 certification procedures. 

The dredging activity may require a 

section 404 permit (33 CFR 323.2(d)), 

and will require a section 10 permit if 

located in navigable waters of the 

United States. (Section 404) 

17. Hydropower Projects. Discharges 

of dredged or fill material associated 

with hydropower projects having: (a) 

Less than 5000 kW of total generating 

capacity at existing reservoirs, where 

the project, including the fill, is licensed 

by the Federal Energy Regulatory 

Commission (FERC) under the Federal 

Power Act of 1920, as amended; or (b) 

a licensing exemption granted by the 

FERC pursuant to Section 408 of the 

Energy Security Act of 1980 (16 U.S.C. 

2705 and 2708) and Section 30 of the 

Federal Power Act, as amended. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Section 404) 

18. Minor Discharges. Minor 

discharges of dredged or fill material 

into all waters of the United States, 

provided the activity meets all of the 

following criteria: 

(a) The quantity of discharged 

material and the volume of area 

excavated do not exceed 25 cubic yards 

below the plane of the ordinary high 

water mark or the high tide line; 

(b) The discharge will not cause the 

loss of more than 1/10 acre of waters of 

the United States; and 

(c) The discharge is not placed for the 

purpose of a stream diversion. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge or the volume of area 

excavated exceeds 10 cubic yards below 

the plane of the ordinary high water 

mark or the high tide line, or (2) the 

discharge is in a special aquatic site, 

including wetlands. (See general 

condition 27.) (Sections 10 and 404) 

19. Minor Dredging. Dredging of no 

more than 25 cubic yards below the 

plane of the ordinary high water mark 

or the mean high water mark from 

navigable waters of the United States 

(i.e., section 10 waters). This NWP does 

not authorize the dredging or 

degradation through siltation of coral 

reefs, sites that support submerged 

aquatic vegetation (including sites 

where submerged aquatic vegetation is 

documented to exist but may not be 

present in a given year), anadromous 

fish spawning areas, or wetlands, or the 

connection of canals or other artificial 

waterways to navigable waters of the 

United States (see 33 CFR 322.5(g)). 

(Sections 10 and 404) 

20. Oil Spill Cleanup. Activities 

required for the containment and 

cleanup of oil and hazardous substances 

that are subject to the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (40 CFR part 300) 

provided that the work is done in 

accordance with the Spill Control and 

Countermeasure Plan required by 40 

CFR 112.3 and any existing state 

contingency plan and provided that the 

Regional Response Team (if one exists 

in the area) concurs with the proposed 

containment and cleanup action. This 

NWP also authorizes activities required 

for the cleanup of oil releases in waters 

of the United States from electrical 

equipment that are governed by EPA’s 

polychlorinated biphenyl spill response 

regulations at 40 CFR part 761. (Sections 

10 and 404) 

21. Surface Coal Mining Operations. 

Discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining and 

reclamation operations provided the 

activities are already authorized, or are 

currently being processed as part of an 

integrated permit processing procedure, 

by the Department of Interior (DOI), 

Office of Surface Mining (OSM), or by 

states with approved programs under 

Title V of the Surface Mining Control 

and Reclamation Act of 1977. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 27.) 

(Sections 10 and 404) 

22. Removal of Vessels. Temporary 

structures or minor discharges of 

dredged or fill material required for the 

removal of wrecked, abandoned, or 

disabled vessels, or the removal of manmade obstructions to navigation. This 

NWP does not authorize maintenance 

dredging, shoal removal, or riverbank 

snagging. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

vessel is listed or eligible for listing in 

the National Register of Historic Places; 

or (2) the activity is conducted in a 

special aquatic site, including coral 

reefs and wetlands. (See general 

condition 27.) If condition 1 above is 

triggered, the permittee cannot 

commence the activity until informed 

by the district engineer that compliance 

with the ‘‘Historic Properties’’ general 

condition is completed. (Sections 10 

and 404) 

Note 1: If a removed vessel is disposed of 

in waters of the United States, a permit from 

the U.S. EPA may be required (see 40 CFR 

229.3). If a Department of the Army permit 

is required for vessel disposal in waters of 

the United States, separate authorization will 

be required. 

Note 2: Compliance with general condition 

17, Endangered Species, and general 

condition 18, Historic Properties, is required 

for all NWPs. The concern with historic 

properties is emphasized in the notification 

requirements for this NWP because of the 

likelihood that submerged vessels may be 

historic properties. 

23. Approved Categorical Exclusions. 

Activities undertaken, assisted, 

authorized, regulated, funded, or 

financed, in whole or in part, by another 

Federal agency or department where: 

(a) That agency or department has 

determined, pursuant to the Council on 

Environmental Quality’s implementing 

regulations for the National 

Environmental Policy Act (40 CFR part 

1500 et seq.), that the activity is 

categorically excluded from 

environmental documentation, because 

it is included within a category of 

actions which neither individually nor 


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cumulatively have a significant effect on 

the human environment; and 

(b) The Office of the Chief of 

Engineers (Attn: CECW–CO) has 

concurred with that agency’s or 

department’s determination that the 

activity is categorically excluded and 

approved the activity for authorization 

under NWP 23. 

The Office of the Chief of Engineers 

may require additional conditions, 

including pre-construction notification, 

for authorization of an agency’s 

categorical exclusions under this NWP. 

Notification: Certain categorical 

exclusions approved for authorization 

under this NWP require the permittee to 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 27). The activities that require 

pre-construction notification are listed 

in the appropriate Regulatory Guidance 

Letters. (Sections 10 and 404) 

Note: The agency or department may 

submit an application for an activity believed 

to be categorically excluded to the Office of 

the Chief of Engineers (Attn: CECW–CO). 

Prior to approval for authorization under this 

NWP of any agency’s activity, the Office of 

the Chief of Engineers will solicit public 

comment. As of the date of issuance of this 

NWP, agencies with approved categorical 

exclusions are the: Bureau of Reclamation, 

Federal Highway Administration, and U.S. 

Coast Guard. Activities approved for 

authorization under this NWP as of the date 

of this notice are found in Corps Regulatory 

Guidance Letter 05–07, which is available at: 

http://www.usace.army.mil/inet/functions/ 

cw/cecwo/reg/rglsindx.htm. Any future 

approved categorical exclusions will be 

announced in Regulatory Guidance Letters 

and posted on this same Web site. 

24. Indian Tribe or State 

Administered Section 404 Programs. 

Any activity permitted by a state or 

Indian Tribe administering its own 

section 404 permit program pursuant to 

33 U.S.C. 1344(g)–(l) is permitted 

pursuant to Section 10 of the Rivers and 

Harbors Act of 1899. (Section 10) 

Note 1: As of the date of the promulgation 

of this NWP, only New Jersey and Michigan 

administer their own section 404 permit 

programs. 

Note 2: Those activities that do not involve 

an Indian Tribe or State section 404 permit 

are not included in this NWP, but certain 

structures will be exempted by Section 154 

of Pub. L. 94–587, 90 Stat. 2917 (33 U.S.C. 

591) (see 33 CFR 322.3(a)(2)). 

25. Structural Discharges. Discharges 

of material such as concrete, sand, rock, 

etc., into tightly sealed forms or cells 

where the material will be used as a 

structural member for standard pile 

supported structures, such as bridges, 

transmission line footings, and 

walkways, or for general navigation, 

such as mooring cells, including the 

excavation of bottom material from 

within the form prior to the discharge of 

concrete, sand, rock, etc. This NWP 

does not authorize filled structural 

members that would support buildings, 

building pads, homes, house pads, 

parking areas, storage areas and other 

such structures. The structure itself may 

require a section 10 permit if located in 

navigable waters of the United States. 

(Section 404) 

26. [Reserved] 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. Activities in waters of the 

United States associated with the 

restoration, enhancement, and 

establishment of tidal and non-tidal 

wetlands and riparian areas and the 

restoration and enhancement of nontidal streams and other non-tidal open 

waters, provided those activities result 

in net increases in aquatic resource 

functions and services. 

To the extent that a Corps permit is 

required, activities authorized by this 

NWP include, but are not limited to: the 

removal of accumulated sediments; the 

installation, removal, and maintenance 

of small water control structures, dikes, 

and berms; the installation of current 

deflectors; the enhancement, 

restoration, or establishment of riffle 

and pool stream structure; the 

placement of in-stream habitat 

structures; modifications of the stream 

bed and/or banks to restore or establish 

stream meanders; the backfilling of 

artificial channels and drainage ditches; 

the removal of existing drainage 

structures; the construction of small 

nesting islands; the construction of open 

water areas; the construction of oyster 

habitat over unvegetated bottom in tidal 

waters; shellfish seeding; activities 

needed to reestablish vegetation, 

including plowing or discing for seed 

bed preparation and the planting of 

appropriate wetland species; 

mechanized land clearing to remove 

non-native invasive, exotic, or nuisance 

vegetation; and other related activities. 

Only native plant species should be 

planted at the site. 

This NWP authorizes the relocation of 

non-tidal waters, including non-tidal 

wetlands and streams, on the project 

site provided there are net increases in 

aquatic resource functions and services. 

Except for the relocation of non-tidal 

waters on the project site, this NWP 

does not authorize the conversion of a 

stream or natural wetlands to another 

aquatic habitat type (e.g., stream to 

wetland or vice versa) or uplands. This 

NWP does not authorize stream 

channelization. This NWP does not 

authorize the relocation of tidal waters 

or the conversion of tidal waters, 

including tidal wetlands, to other 

aquatic uses, such as the conversion of 

tidal wetlands into open water 

impoundments. 

Reversion. For enhancement, 

restoration, and establishment activities 

conducted: (1) In accordance with the 

terms and conditions of a binding 

wetland enhancement, restoration, or 

establishment agreement between the 

landowner and the U.S. Fish and 

Wildlife Service (FWS), the Natural 

Resources Conservation Service (NRCS), 

the Farm Service Agency (FSA), the 

National Marine Fisheries Service 

(NMFS), the National Ocean Service 

(NOS), or their designated state 

cooperating agencies; (2) as voluntary 

wetland restoration, enhancement, and 

establishment actions documented by 

the NRCS or USDA Technical Service 

Provider pursuant to NRCS Field Office 

Technical Guide standards; or (3) on 

reclaimed surface coal mine lands, in 

accordance with a Surface Mining 

Control and Reclamation Act permit 

issued by the OSM or the applicable 

state agency, this NWP also authorizes 

any future discharge of dredged or fill 

material associated with the reversion of 

the area to its documented prior 

condition and use (i.e., prior to the 

restoration, enhancement, or 

establishment activities). The reversion 

must occur within five years after 

expiration of a limited term wetland 

restoration or establishment agreement 

or permit, and is authorized in these 

circumstances even if the discharge 

occurs after this NWP expires. The fiveyear reversion limit does not apply to 

agreements without time limits reached 

between the landowner and the FWS, 

NRCS, FSA, NMFS, NOS, or an 

appropriate state cooperating agency. 

This NWP also authorizes discharges of 

dredged or fill material in waters of the 

United States for the reversion of 

wetlands that were restored, enhanced, 

or established on prior-converted 

cropland that has not been abandoned 

or on uplands, in accordance with a 

binding agreement between the 

landowner and NRCS, FSA, FWS, or 

their designated state cooperating 

agencies (even though the restoration, 

enhancement, or establishment activity 

did not require a section 404 permit). 

The prior condition will be documented 

in the original agreement or permit, and 

the determination of return to prior 

conditions will be made by the Federal 

agency or appropriate state agency 

executing the agreement or permit. 

Before conducting any reversion activity 

the permittee or the appropriate Federal 


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or state agency must notify the district 

engineer and include the documentation 

of the prior condition. Once an area has 

reverted to its prior physical condition, 

it will be subject to whatever the Corps 

Regulatory requirements are applicable 

to that type of land at the time. The 

requirement that the activity result in a 

net increase in aquatic resource 

functions and services does not apply to 

reversion activities meeting the above 

conditions. Except for the activities 

described above, this NWP does not 

authorize any future discharge of 

dredged or fill material associated with 

the reversion of the area to its prior 

condition. In such cases a separate 

permit would be required for any 

reversion. 

Reporting: For those activities that do 

not require pre-construction 

notification, the permittee must submit 

to the district engineer a copy of: (1) The 

binding wetland enhancement, 

restoration, or establishment agreement, 

or a project description, including 

project plans and location map; (2) the 

NRCS or USDA Technical Service 

Provider documentation for the 

voluntary wetland restoration, 

enhancement, or establishment action; 

or (3) the SMCRA permit issued by OSM 

or the applicable state agency. These 

documents must be submitted to the 

district engineer at least 30 days prior to 

commencing activities in waters of the 

United States authorized by this NWP. 

Notification. The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 27), except for the following 

activities: 

(1) Activities conducted on nonFederal public lands and private lands, 

in accordance with the terms and 

conditions of a binding wetland 

enhancement, restoration, or 

establishment agreement between the 

landowner and the U.S. FWS, NRCS, 

FSA, NMFS, NOS, or their designated 

state cooperating agencies; 

(2) Voluntary wetland restoration, 

enhancement, and establishment actions 

documented by the NRCS or USDA 

Technical Service Provider pursuant to 

NRCS Field Office Technical Guide 

standards; or 

(3) The reclamation of surface coal 

mine lands, in accordance with an 

SMCRA permit issued by the OSM or 

the applicable state agency. 

However, the permittee must submit a 

copy of the appropriate documentation. 

(Sections 10 and 404) 

Note: This NWP can be used to authorize 

compensatory mitigation projects, including 

mitigation banks and in-lieu fee programs. 

However, this NWP does not authorize the 

reversion of an area used for a compensatory 

mitigation project to its prior condition, since 

compensatory mitigation is generally 

intended to be permanent. 

28. Modifications of Existing Marinas. 

Reconfiguration of existing docking 

facilities within an authorized marina 

area. No dredging, additional slips, dock 

spaces, or expansion of any kind within 

waters of the United States is authorized 

by this NWP. (Section 10) 

29. Residential Developments. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States for the construction or expansion 

of a single residence, a multiple unit 

residential development, or a residential 

subdivision. This NWP authorizes the 

construction of building foundations 

and building pads and attendant 

features that are necessary for the use of 

the residence or residential 

development. Attendant features may 

include but are not limited to roads, 

parking lots, garages, yards, utility lines, 

storm water management facilities, 

septic fields, and recreation facilities 

such as playgrounds, playing fields, and 

golf courses (provided the golf course is 

an integral part of the residential 

development). 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters. 

Subdivisions: For residential 

subdivisions, the aggregate total loss of 

waters of United States authorized by 

this NWP cannot exceed 1/2 acre. This 

includes any loss of waters of the 

United States associated with 

development of individual subdivision 

lots. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Sections 10 and 404) 

30. Moist Soil Management for 

Wildlife. Discharges of dredged or fill 

material into non-tidal waters of the 

United States and maintenance 

activities that are associated with moist 

soil management for wildlife for the 

purpose of continuing ongoing, sitespecific, wildlife management activities 

where soil manipulation is used to 

manage habitat and feeding areas for 

wildlife. Such activities include, but are 

not limited to, plowing or discing to 

impede succession, preparing seed beds, 

or establishing fire breaks. Sufficient 

riparian areas must be maintained 

adjacent to all open water bodies, 

including streams to preclude water 

quality degradation due to erosion and 

sedimentation. This NWP does not 

authorize the construction of new dikes, 

roads, water control structures, or 

similar features associated with the 

management areas. The activity must 

not result in a net loss of aquatic 

resource functions and services. This 

NWP does not authorize the conversion 

of wetlands to uplands, impoundments, 

or other open water bodies. (Section 

404). 

Note: The repair, maintenance, or 

replacement of existing water control 

structures or the repair or maintenance of 

dikes may be authorized by NWP 3. Some 

such activities may qualify for an exemption 

under Section 404(f) of the Clean Water Act 

(see 33 CFR 323.4). 

31. Maintenance of Existing Flood 

Control Facilities. Discharges of dredged 

or fill material resulting from activities 

associated with the maintenance of 

existing flood control facilities, 

including debris basins, retention/ 

detention basins, levees, and channels 

that: (i) were previously authorized by 

the Corps by individual permit, general 

permit, by 33 CFR 330.3, or did not 

require a permit at the time they were 

constructed, or (ii) were constructed by 

the Corps and transferred to a nonFederal sponsor for operation and 

maintenance. Activities authorized by 

this NWP are limited to those resulting 

from maintenance activities that are 

conducted within the ‘‘maintenance 

baseline,’’ as described in the definition 

below. Discharges of dredged or fill 

materials associated with maintenance 

activities in flood control facilities in 

any watercourse that have previously 

been determined to be within the 

maintenance baseline are authorized 

under this NWP. This NWP does not 

authorize the removal of sediment and 

associated vegetation from natural water 

courses except when these activities 

have been included in the maintenance 

baseline. All dredged material must be 

placed in an upland site or an 

authorized disposal site in waters of the 

United States, and proper siltation 

controls must be used. 

Maintenance Baseline: The 

maintenance baseline is a description of 

the physical characteristics (e.g., depth, 

width, length, location, configuration, or 

design flood capacity, etc.) of a flood 

control project within which 

maintenance activities are normally 

authorized by NWP 31, subject to any 

case-specific conditions required by the 

district engineer. The district engineer 

will approve the maintenance baseline 


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based on the approved or constructed 

capacity of the flood control facility, 

whichever is smaller, including any 

areas where there are no constructed 

channels, but which are part of the 

facility. The prospective permittee will 

provide documentation of the physical 

characteristics of the flood control 

facility (which will normally consist of 

as-built or approved drawings) and 

documentation of the approved and 

constructed design capacities of the 

flood control facility. If no evidence of 

the constructed capacity exists, the 

approved capacity will be used. The 

documentation will also include best 

management practices to ensure that the 

impacts to the aquatic environment are 

minimal, especially in maintenance 

areas where there are no constructed 

channels. (The Corps may request 

maintenance records in areas where 

there has not been recent maintenance.) 

Revocation or modification of the final 

determination of the maintenance 

baseline can only be done in accordance 

with 33 CFR 330.5. Except in 

emergencies as described below, this 

NWP cannot be used until the district 

engineer approves the maintenance 

baseline and determines the need for 

mitigation and any regional or activityspecific conditions. Once determined, 

the maintenance baseline will remain 

valid for any subsequent reissuance of 

this NWP. This NWP does not authorize 

maintenance of a flood control facility 

that has been abandoned. A flood 

control facility will be considered 

abandoned if it has operated at a 

significantly reduced capacity without 

needed maintenance being 

accomplished in a timely manner. 

Mitigation: The district engineer will 

determine any required mitigation onetime only for impacts associated with 

maintenance work at the same time that 

the maintenance baseline is approved. 

Such one-time mitigation will be 

required when necessary to ensure that 

adverse environmental impacts are no 

more than minimal, both individually 

and cumulatively. Such mitigation will 

only be required once for any specific 

reach of a flood control project. 

However, if one-time mitigation is 

required for impacts associated with 

maintenance activities, the district 

engineer will not delay needed 

maintenance, provided the district 

engineer and the permittee establish a 

schedule for identification, approval, 

development, construction and 

completion of any such required 

mitigation. Once the one-time 

mitigation described above has been 

completed, or a determination made 

that mitigation is not required, no 

further mitigation will be required for 

maintenance activities within the 

maintenance baseline. In determining 

appropriate mitigation, the district 

engineer will give special consideration 

to natural water courses that have been 

included in the maintenance baseline 

and require compensatory mitigation 

and/or best management practices as 

appropriate. 

Emergency Situations: In emergency 

situations, this NWP may be used to 

authorize maintenance activities in 

flood control facilities for which no 

maintenance baseline has been 

approved. Emergency situations are 

those which would result in an 

unacceptable hazard to life, a significant 

loss of property, or an immediate, 

unforeseen, and significant economic 

hardship if action is not taken before a 

maintenance baseline can be approved. 

In such situations, the determination of 

mitigation requirements, if any, may be 

deferred until the emergency has been 

resolved. Once the emergency has 

ended, a maintenance baseline must be 

established expeditiously, and 

mitigation, including mitigation for 

maintenance conducted during the 

emergency, must be required as 

appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer before any 

maintenance work is conducted (see 

general condition 27). The preconstruction notification may be for 

activity-specific maintenance or for 

maintenance of the entire flood control 

facility by submitting a five-year (or 

less) maintenance plan. The preconstruction notification must include a 

description of the maintenance baseline 

and the dredged material disposal site. 

(Sections 10 and 404) 

32. Completed Enforcement Actions. 

Any structure, work, or discharge of 

dredged or fill material remaining in 

place or undertaken for mitigation, 

restoration, or environmental benefit in 

compliance with either: 

(i) The terms of a final written Corps 

non-judicial settlement agreement 

resolving a violation of Section 404 of 

the Clean Water Act and/or Section 10 

of the Rivers and Harbors Act of 1899; 

or the terms of an EPA 309(a) order on 

consent resolving a violation of Section 

404 of the Clean Water Act, provided 

that: 

(a) The unauthorized activity affected 

no more than 5 acres of non-tidal waters 

or 1 acre of tidal waters; 

(b) The settlement agreement provides 

for environmental benefits, to an equal 

or greater degree, than the 

environmental detriments caused by the 

unauthorized activity that is authorized 

by this NWP; and 

(c) The district engineer issues a 

verification letter authorizing the 

activity subject to the terms and 

conditions of this NWP and the 

settlement agreement, including a 

specified completion date; or 

(ii) The terms of a final Federal court 

decision, consent decree, or settlement 

agreement resulting from an 

enforcement action brought by the 

United States under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899; or 

(iii) The terms of a final court 

decision, consent decree, settlement 

agreement, or non-judicial settlement 

agreement resulting from a natural 

resource damage claim brought by a 

trustee or trustees for natural resources 

(as defined by the National Contingency 

Plan at 40 CFR subpart G) under Section 

311 of the Clean Water Act, Section 107 

of the Comprehensive Environmental 

Response, Compensation and Liability 

Act, Section 312 of the National Marine 

Sanctuaries Act, Section 1002 of the Oil 

Pollution Act of 1990, or the Park 

System Resource Protection Act at 16 

U.S.C. 19jj, to the extent that a Corps 

permit is required. 

Compliance is a condition of the NWP 

itself. Any authorization under this 

NWP is automatically revoked if the 

permittee does not comply with the 

terms of this NWP or the terms of the 

court decision, consent decree, or 

judicial/non-judicial settlement 

agreement. This NWP does not apply to 

any activities occurring after the date of 

the decision, decree, or agreement that 

are not for the purpose of mitigation, 

restoration, or environmental benefit. 

Before reaching any settlement 

agreement, the Corps will ensure 

compliance with the provisions of 33 

CFR part 326 and 33 CFR 330.6(d)(2) 

and (e). (Sections 10 and 404) 

33. Temporary Construction, Access, 

and Dewatering. Temporary structures, 

work, and discharges, including 

cofferdams, necessary for construction 

activities or access fills or dewatering of 

construction sites, provided that the 

associated primary activity is authorized 

by the Corps of Engineers or the U.S. 

Coast Guard. This NWP also authorizes 

temporary structures, work, and 

discharges, including cofferdams, 

necessary for construction activities not 

otherwise subject to the Corps or U.S. 

Coast Guard permit requirements. 

Appropriate measures must be taken to 

maintain near normal downstream flows 

and to minimize flooding. Fill must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. The use of dredged 


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material may be allowed if the district 

engineer determines that it will not 

cause more than minimal adverse effects 

on aquatic resources. Following 

completion of construction, temporary 

fill must be entirely removed to upland 

areas, dredged material must be 

returned to its original location, and the 

affected areas must be restored to preconstruction elevations. The affected 

areas must also be revegetated, as 

appropriate. This permit does not 

authorize the use of cofferdams to 

dewater wetlands or other aquatic areas 

to change their use. Structures left in 

place after construction is completed 

require a section 10 permit if located in 

navigable waters of the United States. 

(See 33 CFR part 322.) 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 27). The pre-construction 

notification must include a restoration 

plan showing how all temporary fills 

and structures will be removed and the 

area restored to pre-project conditions. 

(Sections 10 and 404) 

34. Cranberry Production Activities. 

Discharges of dredged or fill material for 

dikes, berms, pumps, water control 

structures or leveling of cranberry beds 

associated with expansion, 

enhancement, or modification activities 

at existing cranberry production 

operations. The cumulative total acreage 

of disturbance per cranberry production 

operation, including but not limited to, 

filling, flooding, ditching, or clearing, 

must not exceed 10 acres of waters of 

the United States, including wetlands. 

The activity must not result in a net loss 

of wetland acreage. This NWP does not 

authorize any discharge of dredged or 

fill material related to other cranberry 

production activities such as 

warehouses, processing facilities, or 

parking areas. For the purposes of this 

NWP, the cumulative total of 10 acres 

will be measured over the period that 

this NWP is valid. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer once during the 

period that this NWP is valid, and the 

NWP will then authorize discharges of 

dredge or fill material at an existing 

operation for the permit term, provided 

the 10-acre limit is not exceeded. (See 

general condition 27.) (Section 404) 

35. Maintenance Dredging of Existing 

Basins. Excavation and removal of 

accumulated sediment for maintenance 

of existing marina basins, access 

channels to marinas or boat slips, and 

boat slips to previously authorized 

depths or controlling depths for ingress/ 

egress, whichever is less, provided the 

dredged material is deposited at an 

upland site and proper siltation controls 

are used. (Section 10) 

36. Boat Ramps. Activities required 

for the construction of boat ramps, 

provided the activity meets all of the 

following criteria: 

(a) The discharge into waters of the 

United States does not exceed 50 cubic 

yards of concrete, rock, crushed stone or 

gravel into forms, or in the form of precast concrete planks or slabs, unless the 

50 cubic yard limit is waived in writing 

by the district engineer; 

(b) The boat ramp does not exceed 20 

feet in width, unless this criterion is 

waived in writing by the district 

engineer; 

(c) The base material is crushed stone, 

gravel or other suitable material; 

(d) The excavation is limited to the 

area necessary for site preparation and 

all excavated material is removed to the 

upland; and, 

(e) No material is placed in special 

aquatic sites, including wetlands. 

The use of unsuitable material that is 

structurally unstable is not authorized. 

If dredging in navigable waters of the 

United States is necessary to provide 

access to the boat ramp, the dredging 

may be authorized by another NWP, a 

regional general permit, or an individual 

permit. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge into waters of the United 

States exceeds 50 cubic yards, or (2) the 

boat ramp exceeds 20 feet in width. (See 

general condition 27.) (Sections 10 and 

404) 

37. Emergency Watershed Protection 

and Rehabilitation. Work done by or 

funded by: 

(a) The Natural Resources 

Conservation Service for a situation 

requiring immediate action under its 

emergency Watershed Protection 

Program (7 CFR part 624); 

(b) The U.S. Forest Service under its 

Burned-Area Emergency Rehabilitation 

Handbook (FSH 509.13); 

(c) The Department of the Interior for 

wildland fire management burned area 

emergency stabilization and 

rehabilitation (DOI Manual part 620, Ch. 

3); 

(d) The Office of Surface Mining, or 

states with approved programs, for 

abandoned mine land reclamation 

activities under Title IV of the Surface 

Mining Control and Reclamation Act (30 

CFR subchapter R), where the activity 

does not involve coal extraction; or 

(e) The Farm Service Agency under its 

Emergency Conservation Program (7 

CFR part 701). 

In general, the prospective permittee 

should wait until the district engineer 

issues an NWP verification before 

proceeding with the watershed 

protection and rehabilitation activity. 

However, in cases where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately and 

the district engineer will consider the 

information in the pre-construction 

notification any comments received as a 

result of agency coordination to decide 

whether the NWP 37 authorization 

should be modified, suspended, or 

revoked in accordance with the 

procedures at 33 CFR 330.5. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 27). (Sections 10 and 404) 

38. Cleanup of Hazardous and Toxic 

Waste. Specific activities required to 

effect the containment, stabilization, or 

removal of hazardous or toxic waste 

materials that are performed, ordered, or 

sponsored by a government agency with 

established legal or regulatory authority. 

Court ordered remedial action plans or 

related settlements are also authorized 

by this NWP. This NWP does not 

authorize the establishment of new 

disposal sites or the expansion of 

existing sites used for the disposal of 

hazardous or toxic waste. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Sections 10 and 404) 

Note: Activities undertaken entirely on a 

Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) 

site by authority of CERCLA as approved or 

required by EPA, are not required to obtain 

permits under Section 404 of the Clean Water 

Act or Section 10 of the Rivers and Harbors 

Act. 

39. Commercial and Institutional 

Developments. Discharges of dredged or 

fill material into non-tidal waters of the 

United States for the construction or 

expansion of commercial and 

institutional building foundations and 

building pads and attendant features 

that are necessary for the use and 

maintenance of the structures. 

Attendant features may include, but are 

not limited to, roads, parking lots, 

garages, yards, utility lines, storm water 

management facilities, and recreation 

facilities such as playgrounds and 

playing fields. Examples of commercial 

developments include retail stores, 

industrial facilities, restaurants, 


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business parks, and shopping centers. 

Examples of institutional developments 

include schools, fire stations, 

government office buildings, judicial 

buildings, public works buildings, 

libraries, hospitals, and places of 

worship. The construction of new golf 

courses, new ski areas, or oil and gas 

wells is not authorized by this NWP. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Sections 10 and 404) 

40. Agricultural Activities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for 

agricultural activities, including the 

construction of building pads for farm 

buildings. Authorized activities include 

the installation, placement, or 

construction of drainage tiles, ditches, 

or levees; mechanized land clearing; 

land leveling; the relocation of existing 

serviceable drainage ditches constructed 

in waters of the United States; and 

similar activities. 

This NWP also authorizes the 

construction of farm ponds in non-tidal 

waters of the United States, excluding 

perennial streams, provided the farm 

pond is used solely for agricultural 

purposes. This NWP does not authorize 

the construction of aquaculture ponds. 

This NWP also authorizes discharges 

of dredged or fill material into non-tidal 

waters of the United States to relocate 

existing serviceable drainage ditches 

constructed in non-tidal streams. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

This NWP does not authorize the 

relocation of greater than 300 linear feet 

of existing serviceable drainage ditches 

constructed in non-tidal streams, unless 

for drainage ditches constructed in 

intermittent and ephemeral streams, this 

300 linear foot limit is waived in writing 

by the district engineer. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Section 404) 

Note: Some discharges for agricultural 

activities may qualify for an exemption under 

Section 404(f) of the Clean Water Act (see 33 

CFR 323.4). This NWP authorizes the 

construction of farm ponds that do not 

qualify for the Clean Water Act Section 

404(f)(1)(C) exemption because of the 

recapture provision at Section 404(f)(2). 

41. Reshaping Existing Drainage 

Ditches. Discharges of dredged or fill 

material into non-tidal waters of the 

United States, excluding non-tidal 

wetlands adjacent to tidal waters, to 

modify the cross-sectional configuration 

of currently serviceable drainage ditches 

constructed in waters of the United 

States, for the purpose of improving 

water quality by regrading the drainage 

ditch with gentler slopes, which can 

reduce erosion, increase growth of 

vegetation, and increase uptake of 

nutrients and other substances by 

vegetation. The reshaping of the ditch 

cannot increase drainage capacity 

beyond the original as-built capacity nor 

can it expand the area drained by the 

ditch as originally constructed (i.e., the 

capacity of the ditch must be the same 

as originally constructed and it cannot 

drain additional wetlands or other 

waters of the United States). 

Compensatory mitigation is not required 

because the work is designed to improve 

water quality. 

This NWP does not authorize the 

relocation of drainage ditches 

constructed in waters of the United 

States; the location of the centerline of 

the reshaped drainage ditch must be 

approximately the same as the location 

of the centerline of the original drainage 

ditch. This NWP does not authorize 

stream channelization or stream 

relocation projects. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity, if more than 

500 linear feet of drainage ditch will be 

reshaped. (See general condition 27.) 

(Section 404) 

42. Recreational Facilities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for the 

construction or expansion of 

recreational facilities. Examples of 

recreational facilities that may be 

authorized by this NWP include playing 

fields (e.g., football fields, baseball 

fields), basketball courts, tennis courts, 

hiking trails, bike paths, golf courses, 

ski areas, horse paths, nature centers, 

and campgrounds (excluding 

recreational vehicle parks). This NWP 

also authorizes the construction or 

expansion of small support facilities, 

such as maintenance and storage 

buildings and stables that are directly 

related to the recreational activity, but it 

does not authorize the construction of 

hotels, restaurants, racetracks, stadiums, 

arenas, or similar facilities. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Section 404) 

43. Stormwater Management 

Facilities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States for the construction and 

maintenance of stormwater management 

facilities, including the excavation of 

stormwater ponds/facilities, detention 

basins, and retention basins; the 

installation and maintenance of water 

control structures, outfall structures and 

emergency spillways; and the 

maintenance dredging of existing 

stormwater management ponds/ 

facilities and detention and retention 

basins. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters. This 

NWP does not authorize discharges of 

dredged or fill material for the 

construction of new stormwater 

management facilities in perennial 

streams. 

Notification: For the construction of 

new stormwater management facilities, 

or the expansion of existing stormwater 

management facilities, the permittee 

must submit a pre-construction 

notification to the district engineer prior 

to commencing the activity. (See general 

condition 27.) Maintenance activities do 

not require pre-construction notification 

if they are limited to restoring the 

original design capacities of the 

stormwater management facility. 

(Section 404) 

44. Mining Activities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for mining 

activities, except for coal mining 

activities. The discharge must not cause 

the loss of greater than 1⁄2-acre of nontidal waters of the United States. This 

NWP does not authorize discharges into 


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non-tidal wetlands adjacent to tidal 

waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) If reclamation is required 

by other statutes, then a copy of the 

reclamation plan must be submitted 

with the pre-construction notification. 

(Sections 10 and 404) 

45. Repair of Uplands Damaged by 

Discrete Events. This NWP authorizes 

discharges of dredged or fill material, 

including dredging or excavation, into 

all waters of the United States for 

activities associated with the restoration 

of upland areas damaged by storms, 

floods, or other discrete events. This 

NWP authorizes bank stabilization to 

protect the restored uplands. The 

restoration of the damaged areas, 

including any bank stabilization, must 

not exceed the contours, or ordinary 

high water mark, that existed before the 

damage occurred. The district engineer 

retains the right to determine the extent 

of the pre-existing conditions and the 

extent of any restoration work 

authorized by this NWP. The work must 

commence, or be under contract to 

commence, within two years of the date 

of damage, unless this condition is 

waived in writing by the district 

engineer. This NWP cannot be used to 

reclaim lands lost to normal erosion 

processes over an extended period. 

Minor dredging is limited to the 

amount necessary to restore the 

damaged upland area and should not 

significantly alter the pre-existing 

bottom contours of the waterbody. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer (see general 

condition 27) within 12-months of the 

date of the damage. The preconstruction notification should include 

documentation, such as a recent 

topographic survey or photographs, to 

justify the extent of the proposed 

restoration. (Sections 10 and 404) 

Note: Uplands lost as a result of a storm, 

flood, or other discrete event can be replaced 

without a section 404 permit, if the uplands 

are restored to the ordinary high water mark 

(in non-tidal waters) or high tide line (in tidal 

waters). (See also 33 CFR 328.5.) 

46. Discharges in Ditches. Discharges 

of dredged or fill material into non-tidal 

ditches that are: (1) Constructed in 

uplands, (2) receive water from an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, (3) divert water to an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, and (4) are determined to be 

waters of the United States. The 

discharge must not cause the loss of 

greater than one acre of waters of the 

United States. 

This NWP does not authorize 

discharges of dredged or fill material 

into ditches constructed in streams or 

other waters of the United States, or in 

streams that have been relocated in 

uplands. This NWP does not authorize 

discharges of dredged or fill material 

that increase the capacity of the ditch 

and drain those areas determined to be 

waters of the United States prior to 

construction of the ditch. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (Section 404) 

47. Pipeline Safety Program 

Designated Time Sensitive Inspections 

and Repairs. Activities required for the 

inspection, repair, rehabilitation, or 

replacement of any currently serviceable 

structure or fill for pipelines that have 

been identified by the Pipeline and 

Hazardous Materials Safety 

Administration’s Pipeline Safety 

Program (PHP) within the U.S. 

Department of Transportation as timesensitive (see 49 CFR parts 192 and 195) 

and additional maintenance activities 

done in conjunction with the timesensitive inspection and repair 

activities. All activities must meet the 

following criteria: 

(a) Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable when 

temporary structures, work and 

discharges, including cofferdams, are 

necessary for construction activities or 

access fills or dewatering of 

construction sites; 

(b) Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided that 

the material is not placed in such a 

manner that it is dispersed by currents 

or other forces. The district engineer 

may extend the period of temporary side 

casting for no more than a total of 180 

days, where appropriate. The trench 

cannot be constructed or backfilled in 

such a manner as to drain waters of the 

United States (e.g., backfilling with 

extensive gravel layers, creating a french 

drain effect); 

(c) Temporary fill must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The affected areas must be revegetated, 

as appropriate; 

(d) In wetlands, the top 6 to 12 inches 

of the trench should normally be 

backfilled with topsoil from the trench 

so that there is no change in 

preconstruction contours; 

(e) To the maximum extent 

practicable, the restoration of open 

waters must be to the pre-construction 

course, condition, capacity, and location 

of the waterbody; 

(f) Any exposed slopes and stream 

banks must be stabilized immediately 

upon completion of the project; 

(g) Additional maintenance activities 

done in conjunction with the timesensitive inspection or repair must not 

result in additional losses of waters of 

the United States; and, 

(h) The permittee is a participant in 

the Pipeline Repair and Environmental 

Guidance System (PREGS). 

Reporting: The permittee must submit 

a post construction report to the PHP 

within seven days after completing the 

work. The report must be submitted 

electronically to PHP via PREGS. The 

report must contain the following 

information: Project sites located in 

waters of the United States, temporary 

access routes, stream dewatering sites, 

temporary fills and temporary structures 

identified on a map of the pipeline 

corridor; photographs of the pre- and 

post-construction work areas located in 

waters of the United States; and a list of 

best management practices employed 

for each pipeline segment shown on the 

map. (Section 10 and 404) 

Note: Division engineers may modify this 

NWP by adding regional conditions to 

protect the aquatic environment, as long as 

those regional conditions do not require preconstruction notification or other actions that 

would delay time sensitive inspections and 

repairs. Examples of appropriate regional 

conditions include best management 

practices. 

48. Existing Commercial Shellfish 

Aquaculture Activities. This NWP 

authorizes the installation of buoys, 

floats, racks, trays, nets, lines, tubes, 

containers, and other structures 

necessary for the continued operation of 

the existing commercial aquaculture 

activity. This NWP also authorizes 

discharges of dredged or fill material 

necessary for shellfish seeding, rearing, 

cultivating, transplanting, and 

harvesting activities. Rafts and other 

floating structures must be securely 

anchored and clearly marked. 

This NWP does not authorize new 

operations or the expansion of the 

project area for an existing commercial 

shellfish aquaculture activity. This NWP 

does not authorize the cultivation of 

new species (i.e., species not previously 

cultivated in the waterbody). This NWP 


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does not authorize attendant features 

such as docks, piers, boat ramps, 

stockpiles, staging areas, or the 

deposition of shell material back into 

waters of the United States as waste. 

Reporting: For those activities that do 

not require pre-construction 

notification, the permittee must submit 

a report to the district engineer that 

includes the following information: (1) 

The size of the project area for the 

commercial shellfish aquaculture 

activity (in acres); (2) the location of the 

activity; (3) a brief description of the 

culture method and harvesting 

method(s); (4) the name(s) of the 

cultivated species; and (5) whether 

canopy predator nets are being used. 

This is a subset of the information that 

would be required for pre-construction 

notification. This report may be 

provided by letter or using an optional 

reporting form provided by the Corps. 

Only one report needs to be submitted 

during the period this NWP is valid, as 

long as there are no changes to the 

operation that require pre-construction 

notification. The report must be 

submitted to the district engineer within 

90 days of the effective date of this 

NWP. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer if: (1) The project 

area is greater than 100 acres; or (2) 

there is any reconfiguration of the 

aquaculture activity, such as relocating 

existing operations into portions of the 

project area not previously used for 

aquaculture activities; or (3) there is a 

change in species being cultivated; or 

(4) there is a change in culture methods 

(e.g., from bottom culture to off-bottom 

culture); or (5) dredge harvesting, tilling, 

or harrowing is conducted in areas 

inhabited by submerged aquatic 

vegetation. (See general condition 27.) 

(Sections 10 and 404) 

Note: The permittee should notify the 

applicable U.S. Coast Guard office regarding 

the project. 

49. Coal Remining Activities. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States associated with the remining and 

reclamation of lands that were 

previously mined for coal, provided the 

activities are already authorized, or are 

currently being processed as part of an 

integrated permit processing procedure, 

by the Department of Interior (DOI) 

Office of Surface Mining (OSM), or by 

states with approved programs under 

Title IV or Title V of the Surface Mining 

Control and Reclamation Act of 1977. 

Areas previously mined include 

reclaimed mine sites, abandoned mine 

land areas, or lands under bond 

forfeiture contracts. The permittee must 

clearly demonstrate to the district 

engineer that the reclamation plan will 

result in a net increase in aquatic 

resource functions. As part of the 

project, the permittee may conduct coal 

mining activities in an adjacent area, 

provided the newly mined area is less 

than 40 percent of the area being 

remined plus any unmined area 

necessary for the reclamation of the 

remined area. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 27.) 

(Sections 10 and 404) 

50. Underground Coal Mining 

Activities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States associated with 

underground coal mining and 

reclamation operations provided the 

activities are authorized, or are 

currently being processed as part of an 

integrated permit processing procedure, 

by the Department of Interior (DOI), 

Office of Surface Mining (OSM), or by 

states with approved programs under 

Title V of the Surface Mining Control 

and Reclamation Act of 1977. 

This NWP does not authorize 

discharges into non-tidal wetlands 

adjacent to tidal waters. This NWP does 

not authorize coal preparation and 

processing activities outside of the mine 

site. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 27.) If 

reclamation is required by other 

statutes, then a copy of the reclamation 

plan must be submitted with the preconstruction notification. (Sections 10 

and 404) 

Note: Coal preparation and processing 

activities outside of the mine site may be 

authorized by NWP 21. 

C. Nationwide Permit General 

Conditions 

Note: To qualify for NWP authorization, 

the prospective permittee must comply with 

the following general conditions, as 

appropriate, in addition to any regional or 

case-specific conditions imposed by the 

division engineer or district engineer. 

Prospective permittees should contact the 

appropriate Corps district office to determine 

if regional conditions have been imposed on 

an NWP. Prospective permittees should also 

contact the appropriate Corps district office 

to determine the status of Clean Water Act 

Section 401 water quality certification and/ 

or Coastal Zone Management Act consistency 

for an NWP. 

1. Navigation. (a) No activity may 

cause more than a minimal adverse 

effect on navigation. 

(b) Any safety lights and signals 

prescribed by the U.S. Coast Guard, 

through regulations or otherwise, must 

be installed and maintained at the 

permittee’s expense on authorized 

facilities in navigable waters of the 

United States. 

(c) The permittee understands and 

agrees that, if future operations by the 

United States require the removal, 

relocation, or other alteration, of the 

structure or work herein authorized, or 

if, in the opinion of the Secretary of the 

Army or his authorized representative, 

said structure or work shall cause 

unreasonable obstruction to the free 

navigation of the navigable waters, the 

permittee will be required, upon due 

notice from the Corps of Engineers, to 

remove, relocate, or alter the structural 

work or obstructions caused thereby, 

without expense to the United States. 

No claim shall be made against the 

United States on account of any such 

removal or alteration. 

2. Aquatic Life Movements. No 

activity may substantially disrupt the 

necessary life cycle movements of those 

species of aquatic life indigenous to the 

waterbody, including those species that 

normally migrate through the area, 

unless the activity’s primary purpose is 

to impound water. Culverts placed in 

streams must be installed to maintain 

low flow conditions. 

3. Spawning Areas. Activities in 

spawning areas during spawning 

seasons must be avoided to the 

maximum extent practicable. Activities 

that result in the physical destruction 

(e.g., through excavation, fill, or 

downstream smothering by substantial 

turbidity) of an important spawning area 

are not authorized. 

4. Migratory Bird Breeding Areas. 

Activities in waters of the United States 

that serve as breeding areas for 

migratory birds must be avoided to the 

maximum extent practicable. 

5. Shellfish Beds. No activity may 

occur in areas of concentrated shellfish 

populations, unless the activity is 

directly related to a shellfish harvesting 

activity authorized by NWPs 4 and 48. 

6. Suitable Material. No activity may 

use unsuitable material (e.g., trash, 

debris, car bodies, asphalt, etc.). 

Material used for construction or 

discharged must be free from toxic 

pollutants in toxic amounts (see Section 

307 of the Clean Water Act). 

7. Water Supply Intakes. No activity 

may occur in the proximity of a public 

water supply intake, except where the 

activity is for the repair or improvement 


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of public water supply intake structures 

or adjacent bank stabilization. 

8. Adverse Effects From 

Impoundments. If the activity creates an 

impoundment of water, adverse effects 

to the aquatic system due to accelerating 

the passage of water, and/or restricting 

its flow must be minimized to the 

maximum extent practicable. 

9. Management of Water Flows. To the 

maximum extent practicable, the preconstruction course, condition, 

capacity, and location of open waters 

must be maintained for each activity, 

including stream channelization and 

storm water management activities, 

except as provided below. The activity 

must be constructed to withstand 

expected high flows. The activity must 

not restrict or impede the passage of 

normal or high flows, unless the 

primary purpose of the activity is to 

impound water or manage high flows. 

The activity may alter the preconstruction course, condition, 

capacity, and location of open waters if 

it benefits the aquatic environment (e.g., 

stream restoration or relocation 

activities). 

10. Fills Within 100-Year Floodplains. 

The activity must comply with 

applicable FEMA-approved state or 

local floodplain management 

requirements. 

11. Equipment. Heavy equipment 

working in wetlands or mudflats must 

be placed on mats, or other measures 

must be taken to minimize soil 

disturbance. 

12. Soil Erosion and Sediment 

Controls. Appropriate soil erosion and 

sediment controls must be used and 

maintained in effective operating 

condition during construction, and all 

exposed soil and other fills, as well as 

any work below the ordinary high water 

mark or high tide line, must be 

permanently stabilized at the earliest 

practicable date. Permittees are 

encouraged to perform work within 

waters of the United States during 

periods of low-flow or no-flow. 

13. Removal of Temporary Fills. 

Temporary fills must be removed in 

their entirety and the affected areas 

returned to pre-construction elevations. 

The affected areas must be revegetated, 

as appropriate. 

14. Proper Maintenance. Any 

authorized structure or fill shall be 

properly maintained, including 

maintenance to ensure public safety. 

15. Wild and Scenic Rivers. No 

activity may occur in a component of 

the National Wild and Scenic River 

System, or in a river officially 

designated by Congress as a ‘‘study 

river’’ for possible inclusion in the 

system while the river is in an official 

study status, unless the appropriate 

Federal agency with direct management 

responsibility for such river, has 

determined in writing that the proposed 

activity will not adversely affect the 

Wild and Scenic River designation or 

study status. Information on Wild and 

Scenic Rivers may be obtained from the 

appropriate Federal land management 

agency in the area (e.g., National Park 

Service, U.S. Forest Service, Bureau of 

Land Management, U.S. Fish and 

Wildlife Service). 

16. Tribal Rights. No activity or its 

operation may impair reserved tribal 

rights, including, but not limited to, 

reserved water rights and treaty fishing 

and hunting rights. 

17. Endangered Species. (a) No 

activity is authorized under any NWP 

which is likely to jeopardize the 

continued existence of a threatened or 

endangered species or a species 

proposed for such designation, as 

identified under the Federal Endangered 

Species Act (ESA), or which will 

destroy or adversely modify the critical 

habitat of such species. No activity is 

authorized under any NWP which ‘‘may 

affect’’ a listed species or critical 

habitat, unless Section 7 consultation 

addressing the effects of the proposed 

activity has been completed. 

(b) Federal agencies should follow 

their own procedures for complying 

with the requirements of the ESA. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

(c) Non-federal permittees shall notify 

the district engineer if any listed species 

or designated critical habitat might be 

affected or is in the vicinity of the 

project, or if the project is located in 

designated critical habitat, and shall not 

begin work on the activity until notified 

by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized. For activities that might 

affect Federally-listed endangered or 

threatened species or designated critical 

habitat, the pre-construction notification 

must include the name(s) of the 

endangered or threatened species that 

may be affected by the proposed work 

or that utilize the designated critical 

habitat that may be affected by the 

proposed work. The district engineer 

will determine whether the proposed 

activity ‘‘may affect’’ or will have ‘‘no 

effect’’ to listed species and designated 

critical habitat and will notify the nonFederal applicant of the Corps’

determination within 45 days of receipt 

of a complete pre-construction 

notification. In cases where the nonFederal applicant has identified listed 

species or critical habitat that might be 

affected or is in the vicinity of the 

project, and has so notified the Corps, 

the applicant shall not begin work until 

the Corps has provided notification the 

proposed activities will have ‘‘no effect’’

on listed species or critical habitat, or 

until Section 7 consultation has been 

completed. 

(d) As a result of formal or informal 

consultation with the FWS or NMFS the 

district engineer may add speciesspecific regional endangered species 

conditions to the NWPs. 

(e) Authorization of an activity by a 

NWP does not authorize the ‘‘take’’ of a 

threatened or endangered species as 

defined under the ESA. In the absence 

of separate authorization (e.g., an ESA 

Section 10 Permit, a Biological Opinion 

with ‘‘incidental take’’ provisions, etc.) 

from the U.S. FWS or the NMFS, both 

lethal and non-lethal ‘‘takes’’ of 

protected species are in violation of the 

ESA. Information on the location of 

threatened and endangered species and 

their critical habitat can be obtained 

directly from the offices of the U.S. FWS 

and NMFS or their world wide Web 

pages at http://www.fws.gov/ and 

http://www.noaa.gov/fisheries.html 

respectively. 

18. Historic Properties. (a) 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 

(NHPA) have been satisfied. 

(b) Federal permittees should follow 

their own procedures for complying 

with the requirements of Section 106 of 

the National Historic Preservation Act. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

(c) Non-federal permittees must 

submit a pre-construction notification to 

the district engineer if the authorized 

activity may have the potential to cause 

effects to any historic properties listed, 

determined to be eligible for listing on, 

or potentially eligible for listing on the 

National Register of Historic Places, 

including previously unidentified 

properties. For such activities, the preconstruction notification must state 

which historic properties may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic properties or the 

potential for the presence of historic 

properties. Assistance regarding 

information on the location of or 

potential for the presence of historic 

resources can be sought from the State 


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Historic Preservation Officer or Tribal 

Historic Preservation Officer, as 

appropriate, and the National Register of 

Historic Places (see 33 CFR 330.4(g)). 

The district engineer shall make a 

reasonable and good faith effort to carry 

out appropriate identification efforts, 

which may include background 

research, consultation, oral history 

interviews, sample field investigation, 

and field survey. Based on the 

information submitted and these efforts, 

the district engineer shall determine 

whether the proposed activity has the 

potential to cause an effect on the 

historic properties. Where the nonFederal applicant has identified historic 

properties which the activity may have 

the potential to cause effects and so 

notified the Corps, the non-Federal 

applicant shall not begin the activity 

until notified by the district engineer 

either that the activity has no potential 

to cause effects or that consultation 

under Section 106 of the NHPA has 

been completed. 

(d) The district engineer will notify 

the prospective permittee within 45 

days of receipt of a complete preconstruction notification whether NHPA 

Section 106 consultation is required. 

Section 106 consultation is not required 

when the Corps determines that the 

activity does not have the potential to 

cause effects on historic properties (see 

36 CFR 800.3(a)). If NHPA section 106 

consultation is required and will occur, 

the district engineer will notify the nonFederal applicant that he or she cannot 

begin work until Section 106 

consultation is completed. 

(e) Prospective permittees should be 

aware that section 110k of the NHPA (16 

U.S.C. 470h–2(k)) prevents the Corps 

from granting a permit or other 

assistance to an applicant who, with 

intent to avoid the requirements of 

Section 106 of the NHPA, has 

intentionally significantly adversely 

affected a historic property to which the 

permit would relate, or having legal 

power to prevent it, allowed such 

significant adverse effect to occur, 

unless the Corps, after consultation with 

the Advisory Council on Historic 

Preservation (ACHP), determines that 

circumstances justify granting such 

assistance despite the adverse effect 

created or permitted by the applicant. If 

circumstances justify granting the 

assistance, the Corps is required to 

notify the ACHP and provide 

documentation specifying the 

circumstances, explaining the degree of 

damage to the integrity of any historic 

properties affected, and proposed 

mitigation. This documentation must 

include any views obtained from the 

applicant, SHPO/THPO, appropriate 

Indian tribes if the undertaking occurs 

on or affects historic properties on tribal 

lands or affects properties of interest to 

those tribes, and other parties known to 

have a legitimate interest in the impacts 

to the permitted activity on historic 

properties. 

19. Designated Critical Resource 

Waters. Critical resource waters include, 

NOAA-designated marine sanctuaries, 

National Estuarine Research Reserves, 

state natural heritage sites, and 

outstanding national resource waters or 

other waters officially designated by a 

state as having particular environmental 

or ecological significance and identified 

by the district engineer after notice and 

opportunity for public comment. The 

district engineer may also designate 

additional critical resource waters after 

notice and opportunity for comment. 

(a) Discharges of dredged or fill 

material into waters of the United States 

are not authorized by NWPs 7, 12, 14, 

16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 

49, and 50 for any activity within, or 

directly affecting, critical resource 

waters, including wetlands adjacent to 

such waters. 

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 

22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 

38, notification is required in 

accordance with general condition 27, 

for any activity proposed in the 

designated critical resource waters 

including wetlands adjacent to those 

waters. The district engineer may 

authorize activities under these NWPs 

only after it is determined that the 

impacts to the critical resource waters 

will be no more than minimal. 

20. Mitigation. The district engineer 

will consider the following factors when 

determining appropriate and practicable 

mitigation necessary to ensure that 

adverse effects on the aquatic 

environment are minimal: 

(a) The activity must be designed and 

constructed to avoid and minimize 

adverse effects, both temporary and 

permanent, to waters of the United 

States to the maximum extent 

practicable at the project site (i.e., on 

site). 

(b) Mitigation in all its forms 

(avoiding, minimizing, rectifying, 

reducing, or compensating) will be 

required to the extent necessary to 

ensure that the adverse effects to the 

aquatic environment are minimal. 

(c) Compensatory mitigation at a 

minimum one-for-one ratio will be 

required for all wetland losses that 

exceed 1⁄10 acre and require preconstruction notification, unless the 

district engineer determines in writing 

that some other form of mitigation 

would be more environmentally 

appropriate and provides a projectspecific waiver of this requirement. For 

wetland losses of 1⁄10 acre or less that 

require pre-construction notification, 

the district engineer may determine on 

a case-by-case basis that compensatory 

mitigation is required to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

Since the likelihood of success is greater 

and the impacts to potentially valuable 

uplands are reduced, wetland 

restoration should be the first 

compensatory mitigation option 

considered. 

(d) For losses of streams or other open 

waters that require pre-construction 

notification, the district engineer may 

require compensatory mitigation, such 

as stream restoration, to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

(e) Compensatory mitigation will not 

be used to increase the acreage losses 

allowed by the acreage limits of the 

NWPs. For example, if an NWP has an 

acreage limit of 1⁄2 acre, it cannot be 

used to authorize any project resulting 

in the loss of greater than 1⁄2 acre of 

waters of the United States, even if 

compensatory mitigation is provided 

that replaces or restores some of the lost 

waters. However, compensatory 

mitigation can and should be used, as 

necessary, to ensure that a project 

already meeting the established acreage 

limits also satisfies the minimal impact 

requirement associated with the NWPs. 

(f) Compensatory mitigation plans for 

projects in or near streams or other open 

waters will normally include a 

requirement for the establishment, 

maintenance, and legal protection (e.g., 

conservation easements) of riparian 

areas next to open waters. In some 

cases, riparian areas may be the only 

compensatory mitigation required. 

Riparian areas should consist of native 

species. The width of the required 

riparian area will address documented 

water quality or aquatic habitat loss 

concerns. Normally, the riparian area 

will be 25 to 50 feet wide on each side 

of the stream, but the district engineer 

may require slightly wider riparian 

areas to address documented water 

quality or habitat loss concerns. Where 

both wetlands and open waters exist on 

the project site, the district engineer will 

determine the appropriate 

compensatory mitigation (e.g., riparian 

areas and/or wetlands compensation) 

based on what is best for the aquatic 

environment on a watershed basis. In 

cases where riparian areas are 

determined to be the most appropriate 

form of compensatory mitigation, the 

district engineer may waive or reduce 

the requirement to provide wetland 


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compensatory mitigation for wetland 

losses. 

(g) Permittees may propose the use of 

mitigation banks, in-lieu fee 

arrangements or separate activityspecific compensatory mitigation. In all 

cases, the mitigation provisions will 

specify the party responsible for 

accomplishing and/or complying with 

the mitigation plan. 

(h) Where certain functions and 

services of waters of the United States 

are permanently adversely affected, 

such as the conversion of a forested or 

scrub-shrub wetland to a herbaceous 

wetland in a permanently maintained 

utility line right-of-way, mitigation may 

be required to reduce the adverse effects 

of the project to the minimal level. 

21. Water Quality. Where States and 

authorized Tribes, or EPA where 

applicable, have not previously certified 

compliance of an NWP with CWA 

Section 401, individual 401 Water 

Quality Certification must be obtained 

or waived (see 33 CFR 330.4(c)). The 

district engineer or State or Tribe may 

require additional water quality 

management measures to ensure that the 

authorized activity does not result in 

more than minimal degradation of water 

quality. 

22. Coastal Zone Management. In 

coastal states where an NWP has not 

previously received a state coastal zone 

management consistency concurrence, 

an individual state coastal zone 

management consistency concurrence 

must be obtained, or a presumption of 

concurrence must occur (see 33 CFR 

330.4(d)). The district engineer or a 

State may require additional measures 

to ensure that the authorized activity is 

consistent with state coastal zone 

management requirements. 

23. Regional and Case-By-Case 

Conditions. The activity must comply 

with any regional conditions that may 

have been added by the Division 

Engineer (see 33 CFR 330.4(e)) and with 

any case specific conditions added by 

the Corps or by the state, Indian Tribe, 

or U.S. EPA in its section 401 Water 

Quality Certification, or by the state in 

its Coastal Zone Management Act 

consistency determination. 

24. Use of Multiple Nationwide 

Permits. The use of more than one NWP 

for a single and complete project is 

prohibited, except when the acreage loss 

of waters of the United States 

authorized by the NWPs does not 

exceed the acreage limit of the NWP 

with the highest specified acreage limit. 

For example, if a road crossing over 

tidal waters is constructed under NWP 

14, with associated bank stabilization 

authorized by NWP 13, the maximum 

acreage loss of waters of the United 

States for the total project cannot exceed 

1⁄3-acre. 

25. Transfer of Nationwide Permit 

Verifications. If the permittee sells the 

property associated with a nationwide 

permit verification, the permittee may 

transfer the nationwide permit 

verification to the new owner by 

submitting a letter to the appropriate 

Corps district office to validate the 

transfer. A copy of the nationwide 

permit verification must be attached to 

the letter, and the letter must contain 

the following statement and signature: 

‘‘When the structures or work 

authorized by this nationwide permit 

are still in existence at the time the 

property is transferred, the terms and 

conditions of this nationwide permit, 

including any special conditions, will 

continue to be binding on the new 

owner(s) of the property. To validate the 

transfer of this nationwide permit and 

the associated liabilities associated with 

compliance with its terms and 

conditions, have the transferee sign and 

date below.’’

lllllllllllllllllll

(Transferee) 

lllllllllllllllllll

(Date) 

26. Compliance Certification. Each 

permittee who received an NWP 

verification from the Corps must submit 

a signed certification regarding the 

completed work and any required 

mitigation. The certification form must 

be forwarded by the Corps with the 

NWP verification letter and will 

include: 

(a) A statement that the authorized 

work was done in accordance with the 

NWP authorization, including any 

general or specific conditions; 

(b) A statement that any required 

mitigation was completed in accordance 

with the permit conditions; and 

(c) The signature of the permittee 

certifying the completion of the work 

and mitigation. 

27. Pre-Construction Notification. (a) 

Timing. Where required by the terms of 

the NWP, the prospective permittee 

must notify the district engineer by 

submitting a pre-construction 

notification (PCN) as early as possible. 

The district engineer must determine if 

the PCN is complete within 30 calendar 

days of the date of receipt and, as a 

general rule, will request additional 

information necessary to make the PCN 

complete only once. However, if the 

prospective permittee does not provide 

all of the requested information, then 

the district engineer will notify the 

prospective permittee that the PCN is 

still incomplete and the PCN review 

process will not commence until all of 

the requested information has been 

received by the district engineer. The 

prospective permittee shall not begin 

the activity: 

(1) Until notified in writing by the 

district engineer that the activity may 

proceed under the NWP with any 

special conditions imposed by the 

district or division engineer; or 

(2) If 45 calendar days have passed 

from the district engineer’s receipt of 

the complete PCN and the prospective 

permittee has not received written 

notice from the district or division 

engineer. However, if the permittee was 

required to notify the Corps pursuant to 

general condition 17 that listed species 

or critical habitat might be affected or in 

the vicinity of the project, or to notify 

the Corps pursuant to general condition 

18 that the activity may have the 

potential to cause effects to historic 

properties, the permittee cannot begin 

the activity until receiving written 

notification from the Corps that is ‘‘no 

effect’’ on listed species or ‘‘no potential 

to cause effects’’ on historic properties, 

or that any consultation required under 

Section 7 of the Endangered Species Act 

(see 33 CFR 330.4(f)) and/or Section 106 

of the National Historic Preservation 

(see 33 CFR 330.4(g)) is completed. 

Also, work cannot begin under NWPs 

21, 49, or 50 until the permittee has 

received written approval from the 

Corps. If the proposed activity requires 

a written waiver to exceed specified 

limits of an NWP, the permittee cannot 

begin the activity until the district 

engineer issues the waiver. If the district 

or division engineer notifies the 

permittee in writing that an individual 

permit is required within 45 calendar 

days of receipt of a complete PCN, the 

permittee cannot begin the activity until 

an individual permit has been obtained. 

Subsequently, the permittee’s right to 

proceed under the NWP may be 

modified, suspended, or revoked only in 

accordance with the procedure set forth 

in 33 CFR 330.5(d)(2). 

(b) Contents of Pre-Construction 

Notification: The PCN must be in 

writing and include the following 

information: 

(1) Name, address and telephone 

numbers of the prospective permittee; 

(2) Location of the proposed project; 

(3) A description of the proposed 

project; the project’s purpose; direct and 

indirect adverse environmental effects 

the project would cause; any other 

NWP(s), regional general permit(s), or 

individual permit(s) used or intended to 

be used to authorize any part of the 

proposed project or any related activity. 

The description should be sufficiently 

detailed to allow the district engineer to 


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determine that the adverse effects of the 

project will be minimal and to 

determine the need for compensatory 

mitigation. Sketches should be provided 

when necessary to show that the activity 

complies with the terms of the NWP. 

(Sketches usually clarify the project and 

when provided result in a quicker 

decision.); 

(4) The PCN must include a 

delineation of special aquatic sites and 

other waters of the United States on the 

project site. Wetland delineations must 

be prepared in accordance with the 

current method required by the Corps. 

The permittee may ask the Corps to 

delineate the special aquatic sites and 

other waters of the United States, but 

there may be a delay if the Corps does 

the delineation, especially if the project 

site is large or contains many waters of 

the United States. Furthermore, the 45 

day period will not start until the 

delineation has been submitted to or 

completed by the Corps, where 

appropriate; 

(5) If the proposed activity will result 

in the loss of greater than 1⁄10 acre of 

wetlands and a PCN is required, the 

prospective permittee must submit a 

statement describing how the mitigation 

requirement will be satisfied. As an 

alternative, the prospective permittee 

may submit a conceptual or detailed 

mitigation plan. 

(6) If any listed species or designated 

critical habitat might be affected or is in 

the vicinity of the project, or if the 

project is located in designated critical 

habitat, for non-Federal applicants the 

PCN must include the name(s) of those 

endangered or threatened species that 

might be affected by the proposed work 

or utilize the designated critical habitat 

that may be affected by the proposed 

work. Federal applicants must provide 

documentation demonstrating 

compliance with the Endangered 

Species Act; and 

(7) For an activity that may affect a 

historic property listed on, determined 

to be eligible for listing on, or 

potentially eligible for listing on, the 

National Register of Historic Places, for 

non-Federal applicants the PCN must 

state which historic property may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic property. Federal 

applicants must provide documentation 

demonstrating compliance with Section 

106 of the National Historic 

Preservation Act. 

(c) Form of Pre-Construction 

Notification: The standard individual 

permit application form (Form ENG 

4345) may be used, but the completed 

application form must clearly indicate 

that it is a PCN and must include all of 

the information required in paragraphs 

(b)(1) through (7) of this general 

condition. A letter containing the 

required information may also be used. 

(d) Agency Coordination: (1) The 

district engineer will consider any 

comments from Federal and state 

agencies concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs and the 

need for mitigation to reduce the 

project’s adverse environmental effects 

to a minimal level. 

(2) For all NWP 48 activities requiring 

pre-construction notification and for 

other NWP activities requiring preconstruction notification to the district 

engineer that result in the loss of greater 

than 1⁄2-acre of waters of the United 

States, the district engineer will 

immediately provide (e.g., via facsimile 

transmission, overnight mail, or other 

expeditious manner) a copy of the PCN 

to the appropriate Federal or state 

offices (U.S. FWS, state natural resource 

or water quality agency, EPA, State 

Historic Preservation Officer (SHPO) or 

Tribal Historic Preservation Office 

(THPO), and, if appropriate, the NMFS). 

With the exception of NWP 37, these 

agencies will then have 10 calendar 

days from the date the material is 

transmitted to telephone or fax the 

district engineer notice that they intend 

to provide substantive, site-specific 

comments. If so contacted by an agency, 

the district engineer will wait an 

additional 15 calendar days before 

making a decision on the preconstruction notification. The district 

engineer will fully consider agency 

comments received within the specified 

time frame, but will provide no 

response to the resource agency, except 

as provided below. The district engineer 

will indicate in the administrative 

record associated with each preconstruction notification that the 

resource agencies’ concerns were 

considered. For NWP 37, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately in 

cases where there is an unacceptable 

hazard to life or a significant loss of 

property or economic hardship will 

occur. The district engineer will 

consider any comments received to 

decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

(3) In cases of where the prospective 

permittee is not a Federal agency, the 

district engineer will provide a response 

to NMFS within 30 calendar days of 

receipt of any Essential Fish Habitat 

conservation recommendations, as 

required by Section 305(b)(4)(B) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

(4) Applicants are encouraged to 

provide the Corps multiple copies of 

pre-construction notifications to 

expedite agency coordination. 

(5) For NWP 48 activities that require 

reporting, the district engineer will 

provide a copy of each report within 10 

calendar days of receipt to the 

appropriate regional office of the NMFS. 

(e) District Engineer’s Decision: In 

reviewing the PCN for the proposed 

activity, the district engineer will 

determine whether the activity 

authorized by the NWP will result in 

more than minimal individual or 

cumulative adverse environmental 

effects or may be contrary to the public 

interest. If the proposed activity requires 

a PCN and will result in a loss of greater 

than 1⁄10 acre of wetlands, the 

prospective permittee should submit a 

mitigation proposal with the PCN. 

Applicants may also propose 

compensatory mitigation for projects 

with smaller impacts. The district 

engineer will consider any proposed 

compensatory mitigation the applicant 

has included in the proposal in 

determining whether the net adverse 

environmental effects to the aquatic 

environment of the proposed work are 

minimal. The compensatory mitigation 

proposal may be either conceptual or 

detailed. If the district engineer 

determines that the activity complies 

with the terms and conditions of the 

NWP and that the adverse effects on the 

aquatic environment are minimal, after 

considering mitigation, the district 

engineer will notify the permittee and 

include any conditions the district 

engineer deems necessary. The district 

engineer must approve any 

compensatory mitigation proposal 

before the permittee commences work. 

If the prospective permittee elects to 

submit a compensatory mitigation plan 

with the PCN, the district engineer will 

expeditiously review the proposed 

compensatory mitigation plan. The 

district engineer must review the plan 

within 45 calendar days of receiving a 

complete PCN and determine whether 

the proposed mitigation would ensure 

no more than minimal adverse effects 

on the aquatic environment. If the net 

adverse effects of the project on the 

aquatic environment (after 

consideration of the compensatory 

mitigation proposal) are determined by 

the district engineer to be minimal, the 

district engineer will provide a timely 

written response to the applicant. The 

response will state that the project can 

proceed under the terms and conditions 

of the NWP. 


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If the district engineer determines that 

the adverse effects of the proposed work 

are more than minimal, then the district 

engineer will notify the applicant either: 

(1) That the project does not qualify for 

authorization under the NWP and 

instruct the applicant on the procedures 

to seek authorization under an 

individual permit; (2) that the project is 

authorized under the NWP subject to 

the applicant’s submission of a 

mitigation plan that would reduce the 

adverse effects on the aquatic 

environment to the minimal level; or (3) 

that the project is authorized under the 

NWP with specific modifications or 

conditions. Where the district engineer 

determines that mitigation is required to 

ensure no more than minimal adverse 

effects occur to the aquatic 

environment, the activity will be 

authorized within the 45-day PCN 

period. The authorization will include 

the necessary conceptual or specific 

mitigation or a requirement that the 

applicant submit a mitigation plan that 

would reduce the adverse effects on the 

aquatic environment to the minimal 

level. When mitigation is required, no 

work in waters of the United States may 

occur until the district engineer has 

approved a specific mitigation plan. 

28. Single and Complete Project. The 

activity must be a single and complete 

project. The same NWP cannot be used 

more than once for the same single and 

complete project. 

D. Further Information 

1. District Engineers have authority to 

determine if an activity complies with 

the terms and conditions of an NWP. 

2. NWPs do not obviate the need to 

obtain other federal, state, or local 

permits, approvals, or authorizations 

required by law. 

3. NWPs do not grant any property 

rights or exclusive privileges. 

4. NWPs do not authorize any injury 

to the property or rights of others. 

5. NWPs do not authorize interference 

with any existing or proposed Federal 

project. 

E. Definitions 

Best management practices (BMPs): 

Policies, practices, procedures, or 

structures implemented to mitigate the 

adverse environmental effects on 

surface water quality resulting from 

development. BMPs are categorized as 

structural or non-structural. 

Compensatory mitigation: The 

restoration, establishment (creation), 

enhancement, or preservation of aquatic 

resources for the purpose of 

compensating for unavoidable adverse 

impacts which remain after all 

appropriate and practicable avoidance 

and minimization has been achieved. 

Currently serviceable: Useable as is or 

with some maintenance, but not so 

degraded as to essentially require 

reconstruction. 

Discharge: The term ‘‘discharge’’

means any discharge of dredged or fill 

material and any activity that causes or 

results in such a discharge. 

Enhancement: The manipulation of 

the physical, chemical, or biological 

characteristics of an aquatic resource to 

heighten, intensify, or improve a 

specific aquatic resource function(s). 

Enhancement results in the gain of 

selected aquatic resource function(s), 

but may also lead to a decline in other 

aquatic resource function(s). 

Enhancement does not result in a gain 

in aquatic resource area. 

Ephemeral stream: An ephemeral 

stream has flowing water only during, 

and for a short duration after, 

precipitation events in a typical year. 

Ephemeral stream beds are located 

above the water table year-round. 

Groundwater is not a source of water for 

the stream. Runoff from rainfall is the 

primary source of water for stream flow. 

Establishment (creation): The 

manipulation of the physical, chemical, 

or biological characteristics present to 

develop an aquatic resource that did not 

previously exist at an upland site. 

Establishment results in a gain in 

aquatic resource area. 

Historic Property: Any prehistoric or 

historic district, site (including 

archaeological site), building, structure, 

or other object included in, or eligible 

for inclusion in, the National Register of 

Historic Places maintained by the 

Secretary of the Interior. This term 

includes artifacts, records, and remains 

that are related to and located within 

such properties. The term includes 

properties of traditional religious and 

cultural importance to an Indian tribe or 

Native Hawaiian organization and that 

meet the National Register criteria (36 

CFR part 60). 

Independent utility: A test to 

determine what constitutes a single and 

complete project in the Corps regulatory 

program. A project is considered to have 

independent utility if it would be 

constructed absent the construction of 

other projects in the project area. 

Portions of a multi-phase project that 

depend upon other phases of the project 

do not have independent utility. Phases 

of a project that would be constructed 

even if the other phases were not built 

can be considered as separate single and 

complete projects with independent 

utility. 

Intermittent stream: An intermittent 

stream has flowing water during certain 

times of the year, when groundwater 

provides water for stream flow. During 

dry periods, intermittent streams may 

not have flowing water. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Loss of waters of the United States: 

Waters of the United States that are 

permanently adversely affected by 

filling, flooding, excavation, or drainage 

because of the regulated activity. 

Permanent adverse effects include 

permanent discharges of dredged or fill 

material that change an aquatic area to 

dry land, increase the bottom elevation 

of a waterbody, or change the use of a 

waterbody. The acreage of loss of waters 

of the United States is a threshold 

measurement of the impact to 

jurisdictional waters for determining 

whether a project may qualify for an 

NWP; it is not a net threshold that is 

calculated after considering 

compensatory mitigation that may be 

used to offset losses of aquatic functions 

and services. The loss of stream bed 

includes the linear feet of stream bed 

that is filled or excavated. Waters of the 

United States temporarily filled, 

flooded, excavated, or drained, but 

restored to pre-construction contours 

and elevations after construction, are 

not included in the measurement of loss 

of waters of the United States. Impacts 

resulting from activities eligible for 

exemptions under Section 404(f) of the 

Clean Water Act are not considered 

when calculating the loss of waters of 

the United States. 

Non-tidal wetland: A non-tidal 

wetland is a wetland that is not subject 

to the ebb and flow of tidal waters. The 

definition of a wetland can be found at 

33 CFR 328.3(b). Non-tidal wetlands 

contiguous to tidal waters are located 

landward of the high tide line (i.e., 

spring high tide line). 

Open water: For purposes of the 

NWPs, an open water is any area that in 

a year with normal patterns of 

precipitation has water flowing or 

standing above ground to the extent that 

an ordinary high water mark can be 

determined. Aquatic vegetation within 

the area of standing or flowing water is 

either non-emergent, sparse, or absent. 

Vegetated shallows are considered to be 

open waters. Examples of ‘‘open waters’’

include rivers, streams, lakes, and 

ponds. 

Ordinary High Water Mark: An 

ordinary high water mark is a line on 

the shore established by the fluctuations 

of water and indicated by physical 

characteristics, or by other appropriate 

means that consider the characteristics 

of the surrounding areas (see 33 CFR 

328.3(e)). 


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Perennial stream: A perennial stream 

has flowing water year-round during a 

typical year. The water table is located 

above the stream bed for most of the 

year. Groundwater is the primary source 

of water for stream flow. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Practicable: Available and capable of 

being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes. 

Pre-construction notification: A 

request submitted by the project 

proponent to the Corps for confirmation 

that a particular activity is authorized 

by nationwide permit. The request may 

be a permit application, letter, or similar 

document that includes information 

about the proposed work and its 

anticipated environmental effects. Preconstruction notification may be 

required by the terms and conditions of 

a nationwide permit, or by regional 

conditions. A pre-construction 

notification may be voluntarily 

submitted in cases where preconstruction notification is not required 

and the project proponent wants 

confirmation that the activity is 

authorized by nationwide permit. 

Preservation: The removal of a threat 

to, or preventing the decline of, aquatic 

resources by an action in or near those 

aquatic resources. This term includes 

activities commonly associated with the 

protection and maintenance of aquatic 

resources through the implementation 

of appropriate legal and physical 

mechanisms. Preservation does not 

result in a gain of aquatic resource area 

or functions. 

Re-establishment: The manipulation 

of the physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former aquatic resource. Reestablishment results in rebuilding a 

former aquatic resource and results in a 

gain in aquatic resource area. 

Rehabilitation: The manipulation of 

the physical, chemical, or biological 

characteristics of a site with the goal of 

repairing natural/historic functions to a 

degraded aquatic resource. 

Rehabilitation results in a gain in 

aquatic resource function, but does not 

result in a gain in aquatic resource area. 

Restoration: The manipulation of the 

physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former or degraded aquatic resource. For 

the purpose of tracking net gains in 

aquatic resource area, restoration is 

divided into two categories: Reestablishment and rehabilitation. 

Riffle and pool complex: Riffle and 

pool complexes are special aquatic sites 

under the 404(b)(1) Guidelines. Riffle 

and pool complexes sometimes 

characterize steep gradient sections of 

streams. Such stream sections are 

recognizable by their hydraulic 

characteristics. The rapid movement of 

water over a course substrate in riffles 

results in a rough flow, a turbulent 

surface, and high dissolved oxygen 

levels in the water. Pools are deeper 

areas associated with riffles. A slower 

stream velocity, a streaming flow, a 

smooth surface, and a finer substrate 

characterize pools. 

Riparian areas: Riparian areas are 

lands adjacent to streams, lakes, and 

estuarine-marine shorelines. Riparian 

areas are transitional between terrestrial 

and aquatic ecosystems, through which 

surface and subsurface hydrology 

connects waterbodies with their 

adjacent uplands. Riparian areas 

provide a variety of ecological functions 

and services and help improve or 

maintain local water quality. (See 

general condition 20.) 

Shellfish seeding: The placement of 

shellfish seed and/or suitable substrate 

to increase shellfish production. 

Shellfish seed consists of immature 

individual shellfish or individual 

shellfish attached to shells or shell 

fragments (i.e., spat on shell). Suitable 

substrate may consist of shellfish shells, 

shell fragments, or other appropriate 

materials placed into waters for 

shellfish habitat. 

Single and complete project: The term 

‘‘single and complete project’’ is defined 

at 33 CFR 330.2(i) as the total project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers. A 

single and complete project must have 

independent utility (see definition). For 

linear projects, a ‘‘single and complete 

project’’ is all crossings of a single water 

of the United States (i.e., a single 

waterbody) at a specific location. For 

linear projects crossing a single 

waterbody several times at separate and 

distant locations, each crossing is 

considered a single and complete 

project. However, individual channels 

in a braided stream or river, or 

individual arms of a large, irregularly 

shaped wetland or lake, etc., are not 

separate waterbodies, and crossings of 

such features cannot be considered 

separately. 

Stormwater management: Stormwater 

management is the mechanism for 

controlling stormwater runoff for the 

purposes of reducing downstream 

erosion, water quality degradation, and 

flooding and mitigating the adverse 

effects of changes in land use on the 

aquatic environment. 

Stormwater management facilities: 

Stormwater management facilities are 

those facilities, including but not 

limited to, stormwater retention and 

detention ponds and best management 

practices, which retain water for a 

period of time to control runoff and/or 

improve the quality (i.e., by reducing 

the concentration of nutrients, 

sediments, hazardous substances and 

other pollutants) of stormwater runoff. 

Stream bed: The substrate of the 

stream channel between the ordinary 

high water marks. The substrate may be 

bedrock or inorganic particles that range 

in size from clay to boulders. Wetlands 

contiguous to the stream bed, but 

outside of the ordinary high water 

marks, are not considered part of the 

stream bed. 

Stream channelization: The 

manipulation of a stream’s course, 

condition, capacity, or location that 

causes more than minimal interruption 

of normal stream processes. A 

channelized stream remains a water of 

the United States. 

Structure: An object that is arranged 

in a definite pattern of organization. 

Examples of structures include, without 

limitation, any pier, boat dock, boat 

ramp, wharf, dolphin, weir, boom, 

breakwater, bulkhead, revetment, 

riprap, jetty, artificial island, artificial 

reef, permanent mooring structure, 

power transmission line, permanently 

moored floating vessel, piling, aid to 

navigation, or any other manmade 

obstacle or obstruction. 

Tidal wetland: A tidal wetland is a 

wetland (i.e., water of the United States) 

that is inundated by tidal waters. The 

definitions of a wetland and tidal waters 

can be found at 33 CFR 328.3(b) and 33 

CFR 328.3(f), respectively. Tidal waters 

rise and fall in a predictable and 

measurable rhythm or cycle due to the 

gravitational pulls of the moon and sun. 

Tidal waters end where the rise and fall 

of the water surface can no longer be 

practically measured in a predictable 

rhythm due to masking by other waters, 

wind, or other effects. Tidal wetlands 

are located channelward of the high tide 

line, which is defined at 33 CFR 

328.3(d). 

Vegetated shallows: Vegetated 

shallows are special aquatic sites under 

the 404(b)(1) Guidelines. They are areas 

that are permanently inundated and 

under normal circumstances have 

rooted aquatic vegetation, such as 

seagrasses in marine and estuarine 

systems and a variety of vascular rooted 

plants in freshwater systems. 

Waterbody: For purposes of the 

NWPs, a waterbody is a jurisdictional 


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water of the United States that, during 

a year with normal patterns of 

precipitation, has water flowing or 

standing above ground to the extent that 

an ordinary high water mark (OHWM) 

or other indicators of jurisdiction can be 

determined, as well as any wetland area 

(see 33 CFR 328.3(b)). If a jurisdictional 

wetland is adjacent—meaning 

bordering, contiguous, or neighboring—

to a jurisdictional waterbody displaying 

an OHWM or other indicators of 

jurisdiction, that waterbody and its 

adjacent wetlands are considered 

together as a single aquatic unit (see 33 

CFR 328.4(c)(2)). Examples of 

‘‘waterbodies’’ include streams, rivers, 

lakes, ponds, and wetlands. 

[FR Doc. E7–3960 Filed 3–9–07; 8:45 am] 

BILLING CODE 3710–92–P 


rwilkins on PROD1PC63 with NOTICES