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[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Notices]
[Pages 10184-10290]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3687]

[[Page 10183]]

Vol. 77

Tuesday,

No. 34

February 21, 2012

Part III

Department of Defense

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Department of the Army, Corps of Engineers

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Reissuance of Nationwide Permits; Notice

Federal Register / Vol. 77 , No. 34 / Tuesday, February 21, 2012 / 
Notices

[[Page 10184]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

RIN 0710-AA71

Reissuance of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing 48 of 
the 49 existing nationwide permits (NWPs), general conditions, and 
definitions, with some modifications. The Corps is also issuing two new 
NWPs, three new general conditions, and three new definitions. The 
effective date for the new and reissued NWPs will be March 19, 2012. 
These NWPs will expire on March 18, 2017. 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, 2012.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 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/CECW/Pages/cecwo_reg.aspx.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The U.S. Army Corps of Engineers (Corps) issues nationwide permits 
(NWPs) to authorize certain activities that require Department of the 
Army permits under Section 404 of the Clean Water Act and/or Section 10 
of the Rivers and Harbors Act of 1899. The purpose of this regulatory 
action is to reissue 48 existing NWPs and issue two new NWPs. In 
addition, three new general conditions and three new definitions will 
be issued. The NWPs may be issued for a period of no more than five 
years. Therefore, the Corps must reissue the NWPs every five years to 
continue to authorize these activities. These 50 NWPs will go into 
effect on March 19, 2012.
    The NWPs authorize activities that have minimal individual and 
cumulative adverse effects on the aquatic environment. The NWPs 
authorize a variety of activities, such as aids to navigation, utility 
lines, bank stabilization activities, road crossings, stream and 
wetland restoration activities, residential developments, mining 
activities, commercial shellfish aquaculture activities, and 
agricultural activities. Some NWP activities may proceed without 
notifying the Corps, as long as those activities satisfy the terms and 
conditions of the NWPs. Other NWP activities cannot proceed until the 
project proponent has submitted a pre-construction notification to the 
Corps, and for most NWPs the Corps has 45 days to notify the project 
proponent whether the activity is authorized by NWP.

Background

    In the February 16, 2011, issue of the Federal Register (76 FR 
9174), the U.S. Army Corps of Engineers (Corps) published its proposal 
to reissue 48 existing nationwide permits (NWPs), issue two new NWPs, 
and not reissue one NWP. The Corps also proposed to reissue its general 
conditions and add two new general conditions.
    After evaluating the comments received in response to the February 
16, 2011, proposal, we have made a number of changes to the NWPs, 
general conditions, and definitions to further clarify the permits, 
general conditions, and definitions, facilitate their administration, 
and strengthen environmental protection. Examples of improved 
environmental protection include: imposing limits on surface coal 
mining activities authorized by NWP 21; modifying NWP 27 to authorize 
additional aquatic resource restoration and enhancement activities such 
as the rehabilitation and enhancement of tidal streams, wetlands, and 
open waters; and providing flexibility in designing crossings of 
streams and other waterbodies so that movements of aquatic species can 
be maintained after taking into account the characteristics of the 
stream or waterbody and the surrounding landscape (see general 
condition 2, aquatic life movements). These changes are discussed in 
the preamble.
    The Corps is reissuing 48 existing NWPs, issuing two new NWPs, 
reissuing 28 existing general conditions, and issuing three new general 
conditions. The Corps is also reissuing all of the NWP definitions, and 
adding three new definitions. The Corps is also splitting one existing 
definition into two definitions as they relate to single and complete 
projects. The effective date for these NWPs, general conditions, and 
definitions is March 19, 2012. These NWPs, general conditions, and 
definitions expire on March 18, 2017.

Grandfather Provision for Expiring NWPs

    In accordance with 33 CFR part 330.6(b), activities authorized by 
the current NWPs issued on March 12, 2007, that have commenced or are 
under contract to commence by March 18, 2012, will have until March 18, 
2013, to complete the activity under the terms and conditions of the 
current NWPs. Nationwide permit 21 activities that were authorized by 
the 2007 NWP 21 may be reauthorized without applying the new limits 
imposed on NWP 21, provided the permittee submits a written request for 
reauthorization to the district engineer by February 1, 2013, and the 
district engineer determines that the on-going surface coal mining 
activity will result in minimal adverse effects on the aquatic 
environment and notifies the permittee in writing that the activity is 
authorized under the 2012 NWP 21.

Clean Water Act Section 401 Water Quality Certifications (WQC) and 
Coastal Zone Management Act (CZMA) Consistency Determinations

    The NWPs issued today will become effective on March 19, 2012. This 
Federal Register notice begins the 60-day Clean Water Act Section 401 
water quality certification (WQC) and the 90-day Coastal Zone 
Management Act (CZMA) consistency determination processes.
    After the 60-day period, the latest version of any written position 
taken by a state, Indian tribe, or EPA on its WQC for any of the NWPs 
will be accepted as the state's, Indian tribe's, or EPA's final 
position on those NWPs. If the state, Indian tribe, or EPA takes no 
action by April 23, 2012, WQC will be considered waived for those NWPs.
    After the 90-day period, the latest version of any written position 
taken 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 21, 2012, CZMA concurrence will be 
presumed for those NWPs.
    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 a state's coastal zone, or outside 
a state's coastal zone that will affect land or water uses or natural

[[Page 10185]]

resources of that state's coastal zone, is contingent upon obtaining an 
individual CZMA consistency determination, or a case-specific 
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 until the WQC 60-day 
period and the CZMA 90-day period ended before these NWPs would become 
effective.

Discussion of Public Comments

I. Overview

    In response to the February 16, 2011, Federal Register notice, we 
received more than 26,600 comment letters, of which approximately 
26,300 were form letters pertaining to NWP 21. The non-form letters we 
received contained a few thousand comments on various components of the 
NWPs and NWP Program implementation. We reviewed and fully considered 
all comments received in response to the proposed rule.

General Comments

    Many commenters expressed support for the proposed permits. Some 
commenters stated that the changes are a step forward in improving 
consistency in the NWP program. Many commenters endorsed the 
fundamentals of the NWP program, stating that the permits could have a 
beneficial impact to conducting infrastructure and mining projects 
important to the country. Some stated that permitting delays and an 
increase in individual permits would result without the NWP program, 
creating a backlog for the Corps and resource agencies, while placing a 
burden on regulated industries. Another commenter urged the Corps to 
increase flexibility to allow for project modifications when needed due 
to unanticipated challenges encountered during construction. Some 
commenters stated that further streamlining is needed for increased 
efficiency and reducing administrative burden while maintaining a high 
level of environmental protection. One commenter said the Corps should 
maximize rather than limit use of the NWP program in light of the 
current economic situation, Federal budget cuts, and presidential 
efforts to streamline regulations. Another commenter was pleased to see 
the Corps hold the line against further restrictions on the NWP 
program. Many commenters emphasized that a timely, efficient, and 
consistent permitting system is critical to the nation's economy.
    The NWP Program provides flexibility to readily authorize project 
modifications if the NWP activity cannot be constructed in accordance 
with the approved plans, as long as any modifications would still meet 
the terms and conditions of applicable NWP(s) and qualify for NWP 
authorization. In cases where the district engineer has issued an NWP 
verification letter, the permittee should contact the district as soon 
as he or she finds that the activity cannot be constructed in 
accordance with the approved plans. The district engineer will then 
determine if authorization by NWP is still appropriate. If it is not, 
then the permittee will be instructed on the most appropriate mechanism 
for permitting the modified activity.
    We believe the final permits issued today maintain a proper balance 
between efficiently authorizing activities with minimal individual and 
cumulative adverse environmental effects and protecting the aquatic 
environment. The NWPs provide a streamlined authorization process that 
is consistent with the principles of Executive Order 13563, Improving 
Regulation and Regulatory Review.
    In contrast, many other commenters expressed general opposition to 
the proposal, and said that the proposed rule weakens protection for 
waters and should be withdrawn. Some commenters said that the proposal 
threatens to undermine the important and statutorily mandated function 
of the NWPs and the Clean Water Act, and is contrary to Congressional 
intent. One commenter expressed opposition to the issuance of the NWPs, 
stating that they will result in an increase in the number of 
activities that can be permitted and a reduction in the opportunity for 
public review and comment. Many of these commenters objected to the 
goals of ``streamlining'' or ``improving regulatory efficiency,'' and 
they said that the focus of the NWPs should be on compliance with the 
Clean Water Act. Another commenter was concerned that the proposed NWPs 
do not support the ``no overall net loss'' goal for wetlands, and that 
the Corps analysis predicts that the NWPs will result in a decrease of 
waters of the United States, including wetlands.
    As discussed below, those NWPs that authorize discharges of dredged 
or fill material into waters of the United States comply with the Clean 
Water Act and the environmental criteria provided in its implementing 
regulations, the 404(b)(1) Guidelines at 40 CFR part 230. The NWPs 
authorize minor activities that result in minimal adverse effects on 
the aquatic environment that would likely generate little, if any, 
public comment if they were evaluated through the standard permit 
process with a full public notice. Through the adoption of Section 
404(e) of the Clean Water Act in 1977, Congress approved the use of 
general permits as an important tool to keep the Corps Regulatory 
Program manageable from a resources and manpower perspective, while 
protecting the aquatic environment. The Corps first adopted the concept 
of general permits in its final rule published on July 25, 1975 (see 40 
FR 31321). The NWP program also continues to support the national goal 
of ``no overall net loss'' for wetlands, and wetlands compensatory 
mitigation will be required when appropriate and practicable to offset 
losses of wetland area and functions. The ``no overall net loss'' goal 
applies only to wetlands, and for other waters of the United States the 
goal is to avoid and minimize losses of those waters and to provide 
compensatory mitigation to offset those losses if it is appropriate and 
practicable to do so. Stream mitigation is becoming more commonplace as 
the science and practical applications become further developed.
    Some commenters stated that the NWPs should require consideration 
of less damaging alternatives 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.
    Those NWPs that authorize discharges of dredged or fill material 
into waters of the United States comply with the provisions of the 
404(b)(1) Guidelines that address the issuance of general permits (see 
40 CFR 230.7). A decision document is prepared for each NWP to provide 
information to show that the NWP will authorize only those activities 
that result in minimal adverse effects on the aquatic environment and 
other public interest review factors. Supplemental decision documents 
are prepared at a regional level to support the decision on whether to 
add regional conditions to an NWP or suspend or revoke the use of that 
NWP in a specific waterbody, category of waters, or geographic area to 
ensure that only activities that result in minimal adverse effects on 
the aquatic environment and other public interest review factors are 
authorized by the NWP. In response to a pre-construction notification 
or a request to verify that an activity is authorized by NWP, a 
district engineer

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may add activity-specific conditions to the NWP authorization or 
suspend or revoke the NWP authorization if he or she determines that 
the proposed activity would result in more than minimal adverse 
effects.
    Paragraph (a) of general condition 23, mitigation, requires 
permittees to avoid and minimize adverse effects to waters of the 
United States to the maximum extent practicable on the project site. 
The use of NWPs to authorize the expansion of existing projects does 
not discourage avoidance and minimization because this general 
condition applies equally to all NWP authorizations, including those 
that authorize expansion of existing projects. The consideration of 
practicable alternatives in accordance with 40 CFR 230.10(a) does not 
apply directly to discharges of dredged or fill material into waters of 
the United States authorized by general permits (see 40 CFR 
230.7(b)(1)).

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

    Several commenters said that the proposed NWPs are contrary to the 
Clean Water Act and violate Section 404(e) of that Act. Many commenters 
asserted that the NWPs result in more than minimal adverse effects on 
the aquatic environment, individually and cumulatively. These 
commenters stated that the NWPs do not protect vitally important 
functions of wetlands and streams, and that the proposal does not 
satisfy the Corps legal obligation to limit general permits to 
activities that cause minimal adverse impacts, individually and 
cumulatively. They also said the Corps lacks the data to show that the 
effects of the authorized activities are in fact minimal. Some 
commenters expressed concern regarding the potential overuse of these 
permits without the inclusion of acreage, linear feet, watershed or 
regional limitations. Another commenter said that the NWPs fail to 
describe similarly covered activities in precise terms.
    The Corps disagrees with these comments. The NWPs comply with the 
Clean Water Act and the environmental criteria provided in its 
implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230. 
Section 404(e) of the Clean Water Act states that the Chief of 
Engineers may issue, after publishing a notice and providing an 
opportunity a public hearing, general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States, if it is determined that the 
activities in each category are similar in nature and result in minimal 
individual and cumulative adverse environmental effects. The issuance 
of the NWPs is consistent with these requirements and therefore 
complies with the intent of the Clean Water Act. As discussed above, 
national decision documents and supplemental decision documents are 
prepared to demonstrate that an NWP will authorize only those 
activities that have minimal individual and cumulative adverse effects 
on the aquatic environment and other public interest review factors. 
The decision documents use available data and other information to 
support their conclusions.
    Where appropriate and necessary, certain NWPs have acreage, linear 
foot, or cubic yard limits, or combinations of those limits, to ensure 
that authorized activities result in minimal individual and cumulative 
adverse effects on the aquatic environment. Specifically, NWPs have 
acreage limitations, NWPs have linear foot limitations, and NWPs have 
cubic yard limitations. Many other NWPs have qualitative limitations in 
the form of specific activities or situations that are not authorized, 
or for which a PCN is required to allow the Corps to ensure on a case-
by-case basis that the adverse effects on the aquatic environment of 
the project are truly minimal. A few NWPs have no explicit limits, but 
this is limited to those that authorize activities that provide 
benefits to the aquatic environment (e.g., NWP 27, which authorizes 
aquatic habitat restoration, establishment, and enhancement activities, 
and NWP 41, which authorizes activities for reshaping drainage ditches 
to improve water quality), or those for which the nature of the 
authorized activity inherently ensures that effects will be minimal 
(e.g., NWP 10, which authorizes non-commercial, single boat, mooring 
buoys). Division engineers may impose regional conditions on the NWPs 
to add acreage, linear foot, or cubic yard limits, or reduce those 
limits when the NWPs have specified limits in their terms and 
conditions, to ensure those NWPs authorize only those activities that 
result in minimal adverse effects on the aquatic environment.
    The NWPs comply with the requirement in Section 404(e) of the Clean 
Water Act to authorize categories of activities that are similar in 
nature. Each NWP authorizes a specific category of activities, which 
may be broadly defined for some NWPs to keep the NWP program 
manageable. The Act does not require that activities authorized by an 
NWP be identical, only that they be similar in nature. The permits meet 
this requirement and are consistent with the Corps' longstanding 
practice regarding the appropriate level of detail with which to 
specify what constitutes activities that are similar in nature.

Compliance With the Section 404(b)(1) Guidelines

    Several commenters said that the NWPs do not comply with the 
404(b)(1) Guidelines. One commenter said that the Corps has no factual 
basis to conclude that significant degradation of waters of the United 
States has not occurred, which is required to be in compliance with the 
Guidelines. This commenter recommended withdrawing the NWPs or 
replacing them with state program general permits. One commenter stated 
that the NWPs do not comply with the 404(b)(1) Guidelines because they 
authorize discharges into special aquatic sites.
    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 of the Clean Water Act. For each NWP 
that authorizes discharges of dredged or fill material into waters of 
the United States, the decision document contains a 404(b)(1) 
Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines 
requires 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, 
including the past use of NWPs. In our decision documents, we also used 
readily available national data on the status of wetlands and other 
aquatic habitats in the United States, and the foreseeable impacts of 
the NWPs on those waters.
    The process for issuing state programmatic general permits is 
similar to the process for issuing NWPs, including the use of 
information to support decisions. The 404(b)(1) Guidelines analysis for 
state programmatic general permits is also predictive. Given those 
similarities, compliance with the 404(b)(1) Guidelines is not different 
for state programmatic general permits versus NWPs.
    Despite the fact that many NWPs authorize discharges of dredged or 
fill material into special aquatic sites, they are still in compliance 
with the 404(b)(1) Guidelines. Section 230.7 of the 404(b)(1) 
Guidelines does not

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prohibit the use of NWPs to authorize discharges of dredged or fill 
material into special aquatic sites. Many NWPs contain additional 
provisions to protect special aquatic sites. For example, several NWPs 
specifically require pre-construction notification for proposed 
discharges of dredged or fill material into special aquatic sites 
(e.g., NWP 13 for bank stabilization activities, NWP 14 for linear 
transportation projects, NWP 18 for minor discharges). As another 
example, NWP 19 for minor dredging activities, does not authorize 
dredging in coral reefs or dredging activities that cause siltation 
that degrades coral reefs. General condition 22, designated critical 
resource waters, applies the prohibitions in paragraph (a) and the 
notification requirement in paragraph (b) to wetlands (a special 
aquatic site) adjacent to critical resource waters.

Compliance With the National Environmental Policy Act

    Three commenters stated that the NWPs do not satisfy the 
requirements of the National Environmental Policy Act (NEPA), as they 
do not adequately consider indirect and cumulative effects on global 
warming. One commenter said that degradation in air quality from 
burning coal from mining projects must be addressed in an environmental 
impact statement, and that the Corps has to address the implications of 
climate change on aquatic ecosystems. Another commenter stated that the 
scientific consensus on the impacts of climate change has to be 
considered in the renewal of the NWPs. One commenter said the NWPs 
should take into account ongoing federal efforts to address the effects 
of climate change through federal programs. These federal programs 
address mitigation of climate change (e.g., through reduction of 
greenhouse gas emissions) and adaptation to climate change (e.g., by 
adjustments made to reduce vulnerability resulting from changing 
climate).
    Although the Council on Environmental Quality has made available 
draft guidance on the consideration of the effects of climate change 
and greenhouse gas emissions, and sought public comment on that draft 
guidance, they have not issued any final guidance specifically on how 
to consider, in NEPA documents, the indirect and cumulative effects 
Federal agency actions have on climate change. In the Council on 
Environmental Quality's October 2011 Progress Report of the Interagency 
Climate Change Adaptation Task Force entitled ``Federal Actions for a 
Climate Resilient Nation'' adaptation is defined as ``adjustment in 
natural or human systems to a new or changing environment that exploits 
beneficial opportunities or moderates negative effects.''
    A major cause of climate change is emissions of greenhouse gases. 
Activities authorized by NWPs have little direct, indirect, or 
cumulative effects on climate change and the emission of greenhouse 
gases. There may be brief emissions of greenhouse gases during the 
construction of activities authorized by NWP, specifically discharges 
of dredged or fill material into waters of the United States or 
structures or work in navigable waters of the United States. Any 
greenhouse gas emissions that occur other than as a result of the 
discharge of dredged or fill materials are outside of the Corps NEPA 
scope of analysis because the Corps does not have the legal authority 
to control those emissions. The degradation of air quality caused by 
burning coal is not the result of a discharge of dredged or fill 
material and therefore is outside the Corps legal authority. The 
issuance of a Corps permit is designed to ensure that any discharges of 
dredged or fill material into waters of the United States associated 
with such mining comply with the Clean Water Act. A Corps permit does 
not authorize coal mining per se, and therefore the effects of coal 
mining that do not result from a discharge of dredge or fill material 
to waters of the United States generally are beyond the Corps NEPA 
scope of analysis.
    The effects of climate change on aquatic ecosystems are a much 
broader issue than the effects on the aquatic environment caused by 
activities authorized by NWPs. The effects of climate change on 
hydrology and extreme events are difficult to project. The effects will 
vary by location and the sensitivity of resources to changes in 
hydrology and extreme events. The timeframe used to project hydrologic 
changes will also affect the evaluation. For activities with minimal 
adverse effects on the aquatic environment that are eligible for 
authorization by the NWPs, the Corps believes that any necessary 
adaptation to climate change is appropriately addressed through land 
use planning and zoning, which is the primary responsibility of state, 
tribal, and local governments. Activities authorized by NWPs may be 
part of state, tribal, or local adaptation efforts to mitigate the 
effects of climate change.
    On October 1, 2011, the Corps issued updated guidance on sea level 
change considerations for Civil Works Program (Engineer Circular 1165-
2-211). The current Engineer Circular applies to Corps Civil Works 
activities, but not to the Regulatory Program. As stated on page 25 of 
its ``Climate Change Adaptation Plan and Report 2011'' (available at: 
http://www.corpsclimate.us/adaptationpolicy.cfm), the Corps expects to 
make larger changes in the next update of the Engineer Circular, ``and 
the regulatory program will be added following appropriate 
consultation.''

Compliance With the Endangered Species Act

    One commenter acknowledged the Corps 2007 efforts to pursue 
programmatic consultation for the NWP program with the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service to ensure 
compliance with the Endangered Species Act (ESA), stating that failure 
to complete consultation violates the ESA, as well as Section 404(e) of 
the Clean Water Act. Two commenters stated that the Corps has a 
requirement to complete these consultations prior to the issuance of 
the NWPs.
    We have reinitiated programmatic Section 7 Endangered Species Act 
consultation for the NWPs. If this consultation is not completed prior 
to the effective date of these NWPs, district engineers will consult, 
as necessary on a case-by-case basis with the U.S. Fish and Wildlife 
Service and National Marine Fisheries Service in accordance with 
general condition 18, endangered species. Division engineers may also 
impose regional conditions on any of the NWPs to facilitate compliance 
with the requirements of the Endangered Species Act.

Compliance With Section 304(d) of the National Marine Sanctuaries Act

    One commenter stated that the proposed NWPs must comply with 
Section 304(d) of the National Marine Sanctuaries Act (NMSA). Section 
304(d)(1))(A) of the NMSA states that ``Federal agency actions internal 
or external to a national marine sanctuary, including private 
activities authorized by licenses, leases, or permits, that are likely 
to destroy, cause the loss of, or injure any sanctuary resource are 
subject to consultation with the Secretary.'' The regulations for 
implementing section 304(d) are found at 15 CFR 922.187, and those 
regulations state that the Federal agency consultation should be 
conducted with the Director of the marine sanctuary. The consultation 
may be conducted with Endangered Species Act section 7 consultation.

[[Page 10188]]

    District engineers that have NOAA-designated marine sanctuaries 
within their geographic area of responsibility should consult with the 
Director of the marine sanctuary to determine which NWP activities 
require activity-specific consultation under Section 304(d) of the 
NMSA. Regional conditions should be adopted where necessary to ensure 
compliance with the requirements of section 304(d).

New Nationwide Permits

    We received several suggestions for the establishment of new NWPs 
for various activities. Two commenters suggested developing an NWP to 
authorize activities associated with linear gas facility infrastructure 
based on the Federal Energy Regulatory Commission's (FERC) blanket 
certification program that would allow the industry to undertake 
routine activities without the need to obtain a case-specific 
authorization from FERC for each project. One commenter recommended 
issuing an NWP to authorize activities associated with controlling 
nuisance and exotic plant species and another NWP to authorize 
activities for innovative mitigation proposals. One commenter said that 
an NWP should be developed to authorize the beneficial reuse of dredged 
material, for up to 10,000 cubic yards of material. Another commenter 
recommended adding an NWP to authorize discharges of dredged or fill 
material to raise dam elevations to increase pool elevations of public 
water supply reservoirs to increase potable water supplies and 
wetlands.
    We believe that existing NWPs such as NWPs 12, 3, and 39 are 
sufficient to provide general permit authorization for gas utility 
lines and associated infrastructure. Discharges of dredged or fill 
material into waters of the United States or work in navigable waters 
of the United States associated with the removal of nuisance or exotic 
plant species may be authorized by NWP 27, aquatic habitat restoration, 
establishment, and enhancement activities. Innovative mitigation 
proposals may also be authorized by NWP 27, as long as those activities 
result in net increases in aquatic resource functions and services and 
satisfy the other terms and conditions of that NWP. We believe that the 
beneficial reuse of dredged material, especially at such large 
quantities, is more appropriately evaluated through the individual 
permit process, to more thoroughly consider effects on existing aquatic 
resource functions already being provided in the waters where the 
reused dredged material might be placed.

Waivers of Certain NWP Limits

    We proposed to modify the language concerning the use of waivers in 
NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be 
granted only after the district engineer makes a written determination 
concluding that the discharge will result in minimal adverse effects 
and sets forth the basis for that determination. We also proposed to 
apply the modified waiver language to NWPs 21, 44, and 50, as well as 
to the two proposed new NWPs. Some commenters supported the proposed 
modifications.
    Many commenters said the proposed changes would allow district 
engineers too much discretion, and there should be no waivers of NWP 
limits. One commenter stated there was not a need for waivers because 
many of the NWPs already require pre-construction notification and the 
changes make the NWPs more difficult to obtain. The commenter said the 
waivers create an additional paperwork burden and provide no 
environmental benefits. Many commenters objected to the proposed 
waivers, stating that they imply that ephemeral and intermittent 
streams are considered lower in their function and value to the aquatic 
environment and are provided less protection than perennial streams. 
These commenters discussed the importance of ephemeral and intermittent 
streams to overall watershed integrity and to water quality and stated 
there is no scientific evidence to support the position that the use of 
waivers will result in only minimal impacts. One commenter said that 
before a waiver is issued, there should be analysis of cumulative 
effects to the watershed. Several commenters stated that the use of 
waivers in states with arid and semi-arid ecosystems does not properly 
take into account the importance of headwater streams in these 
ecosystems and could result in more than minimal individual and 
cumulative effects.
    The basic requirement for general permits, including NWPs, is that 
they may only authorize activities that result in minimal individual 
and cumulative adverse effects on the aquatic environment. Section 
404(e) of the Clean Water Act and the regulations relevant to the 
issuance of the NWPs (e.g., 33 CFR part 330 and 40 CFR 230.7) do not 
mandate a single approach to satisfying that basic requirement. The 
terms and conditions of the NWPs, including acreage, linear foot, and 
cubic yard limits and allowing the use of certain NWPs in specific 
types of waters, are intended to limit NWPs activities so that they do 
not result in more than minimal adverse effects on the aquatic 
environment. Division engineers have the authority to impose regional 
conditions on NWPs to restrict or prohibit their use in certain waters 
or other geographic areas. Another important tool is pre-construction 
notification, which provides for district engineers to review proposed 
NWP activities to ensure that they will result in minimal adverse 
effects. In response to a pre-construction notification, a district 
engineer may add activity-specific conditions to the NWP authorization 
to further minimize adverse effects to the aquatic environment. For 
those NWPs that allow district engineers review pre-construction 
notifications and issue written waivers of certain limits, such as the 
300 linear foot limit for the loss of intermittent and ephemeral stream 
bed, the NWP activity must still satisfy the statutory and regulatory 
requirements for general permits. The waiver process does not make the 
NWP process more difficult. Instead, it provides an important tool for 
districts to efficiently authorize activities with minimal adverse 
effects on the aquatic environment after making a written determination 
that the activity satisfies the NWP requirements.
    We recognize the importance of intermittent and ephemeral streams 
and the waiver process for certain NWPs requires district engineers to 
make activity-specific evaluations of the intermittent or ephemeral 
streams proposed to be filled or excavated before deciding whether to 
waive the 300 linear foot limit. To issue a waiver, the district 
engineer must make, and document, a minimal adverse effects 
determination, which as discussed above, is consistent with the 
statutory and regulatory requirements for general permits. As part of 
the analysis, the district engineer must consider the individual and 
cumulative adverse effects on the aquatic environment on a watershed 
basis, or for another appropriate geographic area, such as an 
ecoregion. For those activities in arid and semi-arid regions, district 
engineers will use local criteria as well as their knowledge of arid 
and semi-arid ecosystems to make decisions on pre-construction 
notifications for proposed activities that might be eligible for 
waivers. The basis for any waiver, including appropriate consideration 
of individual and cumulative effects, will be documented in the 
district engineer's written determination.
    Several commenters noted concern with the 45-day pre-construction 
notification review period to provide a

[[Page 10189]]

decision whether to grant or deny the waiver. One commenter noted the 
applicant can proceed without authorization if the Corps fails to 
respond to a waiver request within the 45 day time limit. Several 
commenters expressed concern with the additional time and the expense 
that could be incurred by the applicant who must wait for the waiver 
decision and written determination.
    We believe that the 45-day pre-construction notification review 
period is sufficient for district engineers to make their written 
determinations on whether to issue waivers of the applicable limits for 
certain NWPs. The text of the NWPs that allow waivers of certain limits 
clearly states that the waivers must be made by the district engineer 
in writing. In addition, paragraph (a)(2) of general condition 31, pre-
construction notification, says that if a proposed activity requires a 
written waiver to exceed specified limits of an NWP, the permittee may 
not begin that activity until the district engineer issues the waiver. 
The 45-day pre-construction notification review period still applies to 
pre-construction notifications that involve requests to waive specific 
limits of an NWP, but the project proponent may not proceed with the 
NWP activity if a written waiver is needed and the district engineer 
did not provide a written waiver by the time the 45-day review period 
ends. The Corps will make every effort to act on waiver requests within 
the 45-day review period. If a prospective permittee is concerned that 
a written waiver will not be issued within the 45-day pre-construction 
notification review period, then he or she has the option of modifying 
the proposed activity so that it does not exceed any specified limit of 
the applicable NWP and does not require a written waiver.
    Many commenters said that specific criteria should be applied to 
the waiver process to ensure proposed activities result in minimal 
individual or cumulative adverse effects on the aquatic environment. 
One commenter stated that the waivers provide little incentive to 
minimize impacts. Another commenter said that water quality 
certification cannot be issued for NWPs that have limits that can be 
waived by district engineers because the state cannot certify that 
those activities meet state water quality standards. One commenter said 
that when waivers are issued by district engineers, the district 
engineer must include a fact-specific basis to support his or her 
finding.
    The criteria that are to be applied to requested waivers of 
specified limits for certain NWPs are the same general criteria that 
are to be used to make any minimal adverse effects determination for 
the NWPs. Criteria that are to be used to make minimal adverse effects 
determinations are provided in paragraph (1) of Section D, District 
Engineer's Decision. The waivers still provide incentives to minimize 
impacts because the NWP authorization threshold (i.e., activities must 
result in minimal individual and cumulative adverse effects on the 
aquatic environment) is lower than the authorization threshold for 
individual permits (e.g., the proposed activity is not contrary to the 
public interest and, if it involves discharges of dredged or fill 
material into waters of the United States, it complies with the 
404(b)(1) Guidelines). In other words, a waiver cannot be granted if 
the activity does not meet the minimal effects threshold, and applicant 
cannot proceed without the Corps' written determination. Applicants who 
submit waiver requests run the risk that the waiver will be denied, and 
valuable time will be lost in obtaining Department of the Army 
authorization. Thus, it is in the applicant's interest to modify the 
proposed activity if possible to avoid exceeding a threshold that 
requires a waiver, and especially to avoid submitting waiver requests 
for projects that will in fact have more than minimal adverse effects. 
States can issue water quality certifications for NWPs based on the 
specified acreage, linear foot, or cubic yard limits, and require 
individual water quality certifications for losses of waters of the 
United States that exceed the specified limits and must be waived in 
writing by district engineers. The written waiver determinations 
prepared by the district engineer have to be activity-specific, and 
explain the factual basis of the waiver.
    Several commenters said that the additional information required 
for a request for a waiver and the requirement to use of a functional 
assessment method that is available and practicable would impose a 
significant documentation obligation on Corps staff.
    The NWPs do not impose additional information requirements for 
requests for waivers of specific limits of NWPs. In addition, there is 
no requirement to use functional assessments to make decisions on 
waiver requests. The sentence in paragraph (1) of Section D, District 
Engineer's Decision, on the use of functional assessments to make 
minimal effects determinations, states that those methods ``may'' be 
used if they are available and practicable to use. However, the Corps 
does agree that there must be a factual basis for the waiver (which may 
entail the use of a functional assessment methodology, among other 
possible approaches) and documenting this does impose an additional 
obligation on the Corps. Applicants should provide the district 
engineer as much factual information as possible to support the waiver 
request and facilitate the district engineer's determination.
    Several commenters supported the proposed changes requiring agency 
coordination and a written decision. Several commenters said that all 
appropriate state and Federal resource agencies should be provided an 
opportunity to comment on requests for waivers. One commenter stated 
there is no need for additional agency coordination unless specific 
resource issues are identified, such as compliance with the Endangered 
Species Act or the National Historic Preservation Act.
    We have modified the proposed provision requiring agency 
coordination for pre-construction notifications involving losses of 
greater than 1,000 linear feet of intermittent and ephemeral stream 
bed, to require agency coordination for all pre-construction 
notifications requesting a waiver of the 300 linear foot limit for 
filling or excavating intermittent or ephemeral streams (see paragraph 
(d)(2) of general condition 31, pre-construction notification). Under 
this agency coordination process, district engineers will solicit 
comments from the agencies to assist in making the written minimal 
adverse effects determination necessary for a waiver of the 300 linear 
foot limit to take effect. Compliance with the Endangered Species Act 
and the National Historic Preservation Act is addressed by general 
conditions 18 and 20, respectively.
    One commenter said that the loss of stream bed should be defined 
and the 300 linear foot limit should be reduced to 150 linear feet of 
loss of stream bed for those NWPs. Another commenter suggested reducing 
the linear foot limit for loss of stream bed to 50 linear feet. One 
commenter stated that the 300 linear foot limit should not apply to 
ephemeral streams. One commenter said that waivers should be allowed 
for losses of perennial streams if the adverse effects are determined 
to be minimal and the perennial stream is limited in its aquatic 
function.
    The loss of stream bed is defined in ``loss of waters of the United 
States'' as the linear feet of stream bed that is filled or excavated. 
We believe the 300 linear foot limit is appropriate to ensure that 
losses of stream beds result in minimal

[[Page 10190]]

adverse effects on the aquatic environment. Division engineers may add 
regional conditions to an NWP to reduce the linear foot limit to an 
amount less than 300 linear feet. The 300 linear foot limit should not 
be waived for losses of perennial streams because they function 
differently than intermittent and ephemeral streams, and we believe it 
will generally not be the case that losses of more than 300 linear feet 
of a perennial stream would constitute a minimal adverse effect. We 
believe it would not be a good use of Corps or applicant resources to 
allow waiver requests for perennial streams on the remote chance that 
the adverse effects of such an activity would be found to be minimal. 
The functions provided by perennial streams, intermittent streams, and 
ephemeral streams differ, in terms of ecological processes and 
duration. Perennial streams provide aquatic habitat functions year-
round, while intermittent streams provide aquatic habitat during the 
months when water is flowing in the stream channel, and when hyporheic 
flow occurs during drier months. Ephemeral streams provide aquatic 
habitat functions only for brief periods, because they have flowing 
water only during, and briefly after, precipitation events. Other 
important stream functions, such as sediment transport, nutrient 
cycling, and energy transport also depend on the presence of flowing 
water and, for some of those functions, the presence of aquatic 
organisms inhabiting those waters. The other stream functions are 
present year-round for perennial streams, and for much of the year for 
intermittent streams. In ephemeral streams, sediment transport, 
nutrient cycling, and energy transport functions occur during brief 
periods or are absent. The functional differences exhibited by 
perennial, intermittent, and ephemeral streams provide a scientific 
basis for not allowing a waiver for perennial streams. District 
engineers will make written case-specific determinations on whether to 
waive the 300-linear foot limit for losses of intermittent and 
ephemeral stream bed, based in part on the considerations listed in 
paragraph (1) of Section D, ``District Engineer's Decision.''

Clean Water Act Jurisdiction

    Many commenters cited the U.S. Supreme Court decisions issued in 
2001 and 2006, for Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers and Rapanos v. United States (Rapanos), 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 
and reflect the Corps and EPA's flawed broad interpretation of what 
constitutes a water of the United States, specifically for ephemeral 
streams. Most commenters said the proposed NWPs would result in an 
expansion of Clean Water Act authority and jurisdiction that would have 
a negative impact on the nation's economy by creating excessive burdens 
on developers, farmers, and Corps staff. Another commenter said the 
Corps should not assert jurisdiction over isolated mining pits.
    The NWPs do not assert jurisdiction over waters and wetlands. 
Rather, the NWPs are a form of Department of the Army authorization to 
comply with the permit requirements of Section 404 of the Clean Water 
Act and/or Section 10 of the Rivers and Harbors Act of 1899. Nationwide 
permits issued under the authority of Section 404 of the Clean Water 
Act authorize discharges of dredged or fill material into waters of the 
United States. Nationwide permits issued under the authority of Section 
10 of the Rivers and Harbors Act of 1899 authorize structures or work 
in navigable waters of the United States. Determining the geographic 
jurisdiction under the Clean Water Act (i.e., identifying waters and 
wetlands that are waters of the United States) is a separate process 
than the NWP authorization process. Likewise, identifying navigable 
waters of the United States for the purposes of geographic jurisdiction 
under Section 10 of the Rivers and Harbors Act of 1899 is a different 
process than the NWP authorization process. These NWPs do not expand 
either geographic jurisdiction or activities-based jurisdiction under 
the Clean Water Act. Activity-based jurisdiction under the Clean Water 
Act is determined by applying the appropriate regulations from 33 CFR 
part 323. These NWPs continue to provide a streamlined process for 
obtaining authorization for activities that require Department of the 
Army permits under either Section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899. Determining whether 
isolated mining pits are subject to Clean Water Act jurisdiction is a 
case-specific inquiry to be made by applying the appropriate 
regulations and guidance. A project proponent or landowner may contact 
the Corps district office that has the responsibility for that region 
of the country and request a jurisdictional determination for an 
isolated mining pit or any other area that might be considered a water 
or wetland. The Corps district will respond to that request and inform 
the project proponent or landowner of the status of that water with 
respect to Clean Water Act jurisdiction.

Comments on Administrative Requirements

Executive Order 13211

    One commenter stated that these proposed regulations will cause 
coal mines to cease operations and believe the proposal is subject to 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.
    Although we have made substantial changes to NWP 21, some surface 
coal mining activities will still be authorized by this NWP. The 
changes to NWP 21 will not cause coal mines to cease operations, 
because there are other forms of Department of the Army authorization 
available if the coal mining activity involves discharges of dredged or 
fill material into waters of the United States. Project proponents may 
apply for individual permits to obtain Department of the Army 
authorization for such activities. Any activity that could have 
previously been authorized under earlier versions of NWP 21 would still 
be eligible for authorization under an individual permit. Thus, while 
there may be additional paperwork burden for mine operators, the Corps 
does not believe that the changes in these permits will have a 
significant impact on the supply, distribution, or use of energy (e.g., 
coal).

Executive Order 13563

    Several commenters stated that the proposed NWPs are not consistent 
with EO 13563 for ``Improving Regulation and Regulatory Review'' 
because the modifications to the NWPs would impose numerous onerous 
conditions and limitations on applicants.
    The NWPs continue to provide a streamlined process for authorizing 
activities that require Department of the Army permits under Section 
404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors 
Act of 1899. The average processing times for standard permit 
applications in Fiscal Year 2010 was 221 days, while the average 
processing time for NWP pre-construction notifications and voluntary 
requests for NWP verifications was 32 days. The terms and conditions of 
the NWPs are necessary to ensure that the NWPs comply with applicable 
statutes and regulations, including the requirement that only 
activities with minimal adverse effects, both

[[Page 10191]]

individually and cumulatively, be authorized by NWPs.

Water Quality Certification 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 asked 
for 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.
    The current NWP reissuance process provides sufficient opportunity 
to reduce potential conflicts during the water quality certification 
process. States and Tribes begin their water quality certification 
processes when the proposal to reissue the existing NWPs and issue new 
NWPs is published in the Federal Register for public comment. Water 
quality certification agencies are encouraged to submit comments on the 
NWP proposal. But it is important to remember that each state and Tribe 
is likely to have different water quality standards, and the national 
terms and conditions for the NWPs cannot address those regional 
variations.
    After the comments received in response to the proposal are 
reviewed, the final NWPs are developed. Once the final NWPs are 
published in the Federal Register, States and Tribes have another 
opportunity to decide whether to issue or deny water quality 
certification for the NWPs. States and Tribes will have 90 days to make 
their water quality certification decisions.
    If water quality certification was denied for an NWP, then the 
permittee must obtain an individual water quality certification or a 
waiver, even if the Corps issued a provisional NWP verification. The 
provisional NWP verification merely informs the prospective permittee 
that the Corps has determined that the proposed activity qualifies for 
NWP authorization, as long as the permittee receives an individual 
water quality certification or waiver. The prospective permittee should 
provide a copy of the individual water quality certification to the 
Corps district. The Corps has full authority to pursue an enforcement 
action for not obtaining an individual water quality certification or 
waiver, which is a violation of the terms of the permit. Case-specific 
decisions on appropriate enforcement actions are at the Corps 
discretion. The provision for NWP verification is an important tool to 
be responsive to users of the NWPs, and to inform them of their need to 
work with the water quality certification agency to comply with the 
requirements of Section 401 of the Clean Water Act. The provisional 
verification serves to inform the applicant that all other requirements 
for NWP verification have been satisfied and allows the applicant to 
focus on obtaining the required state certifications.

Discussion of Comments

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. One commenter recommended not reissuing this NWP 
because a state will deny water quality certification.
    The potential for a state to deny water quality certification for 
an NWP is not a sufficient basis for not reissuing an NWP. The water 
quality certification process is independent of the decision on whether 
to issue or reissue an NWP. This NWP is reissued without change.
    NWP 3. Maintenance. We proposed to modify this NWP to clarify that 
stream channel excavation immediately adjacent to the structure or fill 
being maintained is authorized under paragraph (a) and does not require 
a PCN. We also proposed to replace the word ``and'' with ``and/or'' in 
paragraph (b) to indicate that the activity does not need to include 
the placement of new or additional riprap to qualify for this NWP.
    Several commenters supported the change to paragraph (a) to allow 
excavation in a stream channel immediately adjacent to a structure or 
fill as part of the maintenance activity, without requiring pre-
construction notification. Some commenters specifically supported the 
ability to do minor excavation within stream channels to install a 
larger culvert or bridge that would improve fish passage without a pre-
construction notification. Two commenters asked which types of stream 
channel modifications could be authorized under paragraph (a). Another 
commenter said that the proposed modification does not adequately 
clarify that a pre-construction notification is not required for stream 
channel modification as discussed in the proposed rule. This commenter 
recommended that paragraph (a) state that stream channel modification 
immediately adjacent to the structure or fill being maintained is 
authorized without pre-construction notification. One commenter 
suggested that paragraph (a) include the removal of material from 
within existing structures. One commenter indicated that the scope of 
activities considered as stream channel modifications should be 
clarified, because certain stream channel modifications such as 
sediment or debris removal and reestablishment of the original bridge-
stream alignment are needed to maintain a safe crossing with sufficient 
hydraulic capacity. Another commenter indicated that while stream 
channel modification is restricted to the minimum necessary, there 
should be a 300 linear foot impact limit. One commenter did not support 
the proposed modification, stating that pre-construction notification 
should be required for stream channel excavation near a structure 
because excavation has the potential to uncover unknown archeological 
resources.
    We have changed the text of paragraphs (a) and (b) to clarify which 
stream modifications fall under paragraph (a) and which fall under 
paragraph (b). The removal of material from waters within, or 
immediately adjacent to, the structure or fill are authorized under 
paragraph (a) and do not require pre-construction notification. The 
removal of material from waters that are not immediately adjacent to 
the structure or fill, but within the limits in paragraph (b), may be 
authorized under paragraph (b). This NWP authorizes only activities 
that repair or return an activity to previously existing conditions. We 
do not believe it is necessary to place additional limits on this NWP 
because the current limits are sufficient to ensure minimal effects. 
Paragraph (a) only authorizes minor stream channel modifications 
necessary to repair, replace, or rehabilitate the structure or fill, 
which may include minor deviations to account for changes in materials, 
construction techniques, requirements of other regulatory agencies, or 
current construction codes or safety standards. Such minor deviations 
could be done to improve conditions to facilitate aquatic species 
movements. General conditions 20 and 21 address the protection of 
historic properties and actions to be taken if previously unknown 
remains or artifacts are discovered during the maintenance activity.

[[Page 10192]]

    Several commenters recommended adding the word ``or stabilization'' 
after ``repair, rehabilitation, replacement'' in paragraph (a) to 
clarify that stabilization activities are included in paragraph (a). 
Two commenters requested that practicability be considered with the 
``minimum necessary.'' One commenter requested that the NWP include the 
requirements of other regulatory agencies as a reason for allowing 
minor deviations in a structure's configuration or filled area.
    We do not believe it would be appropriate to include stabilization 
activities under paragraph (a) since some stabilization activities may 
result in more than a minor deviation in the structure's configuration 
or filled area. District engineers already consider what is practicable 
when reviewing proposed NWP 3 activities, and we do not believe it is 
necessary to provide additional clarification. We agree that the 
requirements of other regulatory agencies is an appropriate basis for 
making minor changes in a structure or filled area during maintenance, 
especially if those regulatory requirements help protect aquatic 
resources.
    Several commenters stated that the placement of new or additional 
riprap to protect small structures be included in paragraph (a). A 
commenter requested clarification that the placement of pipe liners and 
concrete repairs to flow lines of pipes are examples of maintenance 
activities authorized by this NWP. One commenter expressed concern that 
authorizing the expansion of existing projects into waters of the 
United States discourages avoidance and minimization of adverse impacts 
and violates the 404(b)(1) Guidelines. Another commenter indicated that 
work that is immediately adjacent to the project is not maintenance and 
that the work should be limited to the extent of the original project.
    The placement of riprap to protect a structure or fill is more 
appropriately authorized by paragraph (b) of this NWP, after the 
district engineer reviews the pre-construction notification. If the 
installation of pipe liners or concrete repairs to flow lines are 
necessary and result only in a minor deviation to the structure's 
configuration or filled area, it may be authorized under paragraph (a). 
Paragraph (a) only authorizes minor deviations to the structure or 
filled area that are necessary to conduct the repair, rehabilitation, 
or replacement activity, and complies with the general condition 
requiring on-site avoidance and minimization.
    One commenter said that the permit should require that the Corps be 
notified, within 12 months of the date of the damage, for activities 
involving the repair, rehabilitation, or replacement of structures or 
fills destroyed or damaged by storms, floods, fire or other discrete 
events.
    The repair, rehabilitation, or replacement of structures or fills 
destroyed or damaged by these types of events does not require pre-
construction notification. This is because restoring a structure or 
fill to its pre-event configuration will not result in more than 
minimal adverse effects relative to the pre-event status quo. If a 
project proponent wants a waiver of the two-year limit, the district 
engineer can issue a waiver if warranted, without reviewing a pre-
construction notification.
    Some commenters expressed opposition over the proposed change from 
``and'' to ``and/or'' under paragraph (b). They recommended retaining 
the current language because they indicated that making the change to 
``and/or'' would cause confusion as to which provision of this NWP 
would be used to authorize riprap placement. The commenters also said 
that this change would result in the regulation of excavation 
activities that do not result in more than incidental fallback. Another 
commenter was concerned that the change to ``and/or'' suggested that 
the addition of riprap triggered pre-construction notification.
    The use of the term ``and/or'' means that paragraph (b) authorizes 
the removal of accumulated sediments or debris, the placement of new or 
additional riprap to protect the structure, or both activities. This 
NWP authorizes the removal of accumulated sediment and debris if that 
activity involves a regulated discharge of dredged or fill material. 
This NWP also authorizes the removal of accumulated sediments and 
debris in the vicinity of existing structures from section 10 waters. 
If a project proponent seeks authorization to place new or additional 
riprap near the structure, then pre-construction notification is 
required in accordance with paragraph (b) of this NWP.
    One commenter said that the use of riprap should be discouraged and 
only authorized if other options are not possible. Another commenter 
suggested placing a limit on the amount of riprap that can be placed 
under paragraph (b). One commenter stated that the placement of new or 
additional riprap is not maintenance and should not be authorized by 
NWP 3. One commenter recommended requiring mitigation techniques, such 
as weep holes, when steel sheet piling is used for the maintenance 
activity.
    Riprap may be necessary to protect the integrity of these 
structures. We have modified the next to last sentence of paragraph (b) 
to clarify that new or additional riprap may be placed to protect the 
structure or ensure the safety of the structure. In response to a pre-
construction notification (which is required for all placement of new 
or additional riprap under paragraph (b) of this NWP), best management 
practices or other mitigation measures may be required by the district 
engineer to minimize adverse effect to the aquatic environment.
    One commenter said that this NWP should not authorize maintenance 
dredging and that NWP 19 should be used instead. This commenter also 
recommended adding a cubic yard limit for the amount of dredging that 
is authorized. Another commenter recommended that the removal of 
sediment should be limited to 100 feet instead of 200 feet. One 
commenter suggested increasing the linear foot limit to 500 feet. One 
commenter also suggested that the applicant be required to provide 
information to ensure that sediments proposed to be removed are not 
contaminated.
    Paragraph (b) may be used to authorize the removal of accumulated 
sediment and debris from section 10 waters, and the 200 linear foot 
limit is appropriate to ensure minimal adverse effects. District and 
division engineers can condition this NWP to reduce the limit to less 
than 200 linear feet. Maintenance dredging for the purposes of 
navigation may be authorized by NWP 19 and may not be authorized by 
this NWP. The only excavation authorized by this NWP is excavation 
necessary for the maintenance, repair, rehabilitation, or replacement 
of the structure, and then only within the limits established in the 
permit. It is not necessary to require contaminant testing for the 
sediments to be removed as a general condition of the permit, because 
for many cases there is reason to believe that no contaminants are 
present in the material. If there is reason to believe that 
contaminants are present, the district engineer may require contaminant 
testing and/or best management practices to control the release of 
contaminants on a case-specific basis.
    One commenter objected to the proposed removal of the words 
``[w]here maintenance dredging is proposed'' from the ``Notification'' 
paragraph. Another commenter said that pre-construction notification 
should only be

[[Page 10193]]

required when maintenance dredging is contemplated.
    Pre-construction notification is required for all activities 
covered under paragraph (b). When a permittee submits the pre-
construction notification for activities covered under paragraph (b), 
they also must submit information regarding the original design 
capacities and configurations of the outfalls, intakes, small 
impoundments, and canals. The deleted phrase is meant to clarify the 
``Notification'' provision.
    A commenter asked if the term ``upland'' means ``above the ordinary 
high water mark.'' That commenter also requested clarification as to 
what constitutes ``temporary'' in terms of how long temporary fills can 
be kept in place. Another commenter asked for a definition of ``minor 
deviations'' and two commenters recommended that ``immediately 
adjacent'' be defined.
    There may be wetlands landward of the ordinary high water mark of a 
river or other water of the United States, so it would not be 
appropriate to define ``uplands'' as suggested in the previous 
paragraph. Since some waters and wetlands are not subject to Clean 
Water Act jurisdiction, we have changed the text of paragraph (b) to 
require all dredged or excavated materials to be deposited and retained 
in an area that has no waters of the United States, unless otherwise 
specifically approved by the district engineer under separate 
authorization. Waters of the United States will be identified in 
accordance with applicable laws, regulations, and guidance, as 
discussed above, and is not affected by the issuance of these NWPs. 
What constitutes a temporary fill is at the discretion of the district 
engineer. Determining what is a minor deviation and immediately 
adjacent is also at the discretion of the district engineer. The Corps 
believes this is appropriate because it is difficult to identify bright 
line definitions for these terms that are applicable in all 
circumstances. If an applicant is unsure whether a specific activity 
qualifies, he or she should consult the appropriate Corps district 
office.
    Several commenters said that pre-construction notification should 
not be required for activities authorized by paragraph (b), to reduce 
delays. Other commenters requested removal of the pre-construction 
notification requirements for sediment and debris removal, because the 
work is often conducted immediately after storm events when a timely 
response is critical to public safety. Another commenter also requested 
that no pre-construction notification be required for activities under 
paragraph (b), if the waters are ephemeral or intermittent streams. 
Other commenters said that pre-construction notification should be 
required for all activities authorized by this NWP.
    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. Activities authorized by 
paragraph (b) usually involve larger impacts than those authorized by 
paragraph (a) and therefore warrant pre-construction notification to 
ensure that those activities will result in minimal adverse effects on 
the aquatic environment.
    One commenter suggested that this NWP should require the use of 
best management practices to avoid sediment loading of waters. One 
commenter suggested that paragraph (c) should be conditioned to protect 
downstream water quality and prohibit sediment discharges. Two 
commenters said that general condition 2 should not apply to NWP 3 
activities.
    General condition 12 requires the use of sediment and erosion 
controls to minimize sediment inputs during construction. General 
condition 2 does apply to this NWP, to ensure that aquatic life 
movements can continue after the maintenance activity is conducted.
    One commenter said that Tribes should be notified to avoid impacts 
to tribal treaty natural resources and cultural resources. Two 
commenters said that this NWP should be conditioned to allow fish 
migration to continue. One of these commenters also stated that these 
activities should not restrict water flows or constrict channels. One 
commenter said that this NWP should be conditioned to address slope 
stability to prevent overburden material from going into the water. 
Another commenter recommended that all stream crossings span the 
bankfull width and, in cases where the structures have a bottom, the 
structure bottom shall match stream slope.
    District engineers have conducted government-to-government 
consultation with Tribes to determine which NWP activities should be 
subject to project-specific consultation to protect Tribal treaty 
natural resources and cultural resources. General Condition 18 
specifies that no activity or its operation may impair reserved tribal 
rights, including, but not limited to, reserved water rights and treaty 
fishing and hunting rights. General condition 2 requires that NWP 
activities be constructed to maintain aquatic life movements, and 
general condition 9 requires that water flows be maintained to the 
maximum extent practicable. The appropriate size for stream crossings 
will be determined on a case-by-case basis, to comply with the 
applicable general conditions.
    A commenter recommended an addition to the ``Note'', which 
references the section 404(f) exemption for maintenance. This commenter 
suggested that the note include clarification as to who can use the 
exemption for maintenance of irrigation and drainage ditches.
    The section 404(f) exemption for maintenance of irrigation ditches 
and drainage ditches can be used by anyone that qualifies for the 
exemption. If a particular activity does not qualify for the exemption 
because of the recapture provision in section 404(f)(2) or for any 
other reason, NWP 3 may be used to authorize the maintenance activity, 
if it meets the terms and conditions of the NWP.
    This NWP is reissued with the modifications discussed above.
    NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. There were no changes proposed for this NWP. 
One commenter suggested adding fish aggregating devices to the list of 
devices and activities authorized by this NWP. Fish aggregating devices 
are man-made objects used to attract ocean-going pelagic fish. Before 
these devices, commercial fishing used purse seining to target surface-
visible aggregations of birds and dolphins, which were used as a signal 
of the presence of tuna schools below. However, the by-catch of 
dolphins became a significant issue. The demand for dolphin-safe tuna 
was a driving force for fish aggregating devices. Therefore, we concur 
with the comment and have added that device to this NWP. This NWP is 
reissued with the modification discussed above.
    NWP 5. Scientific Measurement Devices. We proposed to modify this 
NWP to require the removal of the device and any associated structures 
or fills at the conclusion of the study. We also proposed to add 
meteorological stations to the list of examples of the types of devices 
authorized by this NWP, as well as current gages and biological 
observation devices.
    One commenter suggested that each of the listed devices be defined 
and have footprint and height limitations. Another commenter said that 
meteorological stations should not be authorized by this NWP. One 
commenter supported adding meteorological stations, current gages,

[[Page 10194]]

and biological observation devices as examples of the types of devices 
authorized by this NWP. Another commenter stated the Corps should 
define a maximum period required for a meteorological tower study.
    We do not believe it is necessary to provide definitions for each 
of these devices and add limits. These devices are usually small in 
size and since most of them are structures they do not typically result 
in a loss of waters of the United States. This NWP already has a 25 
cubic yard limit for weirs and flumes. Division engineers can 
regionally condition this NWP to establish additional limits, including 
maximum time frames for studies. In response to an NWP verification 
request, district engineers may also place limits on these devices and 
their use.
    One commenter suggests the Corps clarify the requirements for the 
removal of a scientific measurement device, and suggested that the NWP 
not require excavation to remove the entire structure. This commenter 
also said that cutting off the structure near the substrate of the 
waterbody and leaving the buried foundation may result in less 
environmental damage during removal. Another commenter said that where 
meteorological towers are used for long-term data collection and 
preliminary testing for wind turbines, those meteorological towers 
would be removed during the wind energy facility decommissioning 
process. One commenter stated that the device should be removed ``upon 
completion of the use of the device to measure and record scientific 
data.''
    We have modified the provision in the NWP to require the removal of 
the device when it will no longer be used to measure and record 
scientific data. Meteorological towers used in wind energy generation 
facility preliminary testing and operations could be left in place 
until the facility is decommissioned. We have also changed the text to 
state that structures or fills must be removed to the maximum extent 
practicable, which would allow the foundation to remain if removing the 
foundation would cause more adverse effects to the waters or wetlands 
than leaving the foundation in place. We also added the word 
``foundation'' to the examples of structures or fills that may be 
associated with a scientific measurement device.
    This NWP is reissued with the modifications discussed above.
    NWP 6. Survey Activities. We proposed to modify this NWP to specify 
how exploratory trenches are backfilled by stating the work ``must not 
drain a water of the United States'' and to replace the 25 cubic yard 
limit for temporary pads with a \1/10\-acre limit.
    Several commenters supported changing the limit from 25 cubic yards 
to \1/10\-acre. Two commenters expressed concern that removing the 25 
cubic yard limit would result in more than minimal cumulative effects 
to aquatic resources. One commenter recommended adding wetland 
delineation sampling activities to the list of examples of activities 
authorized by this NWP. Several others recommended adding conditions to 
require removal of the temporary fills and re-establishment of pre-
construction contours and reseeding of affected areas after completion 
of work. One commenter requested a definition of ``temporary pad.'' One 
commenter recommended that exploratory trenching should not be 
authorized below the ordinary high water mark of any waters of the 
United States.
    We are changing the limit of this NWP from 25 cubic yards to \1/
10\-acre. We have added ``sample plots or transects for wetland 
delineations'' as an example of an activity authorized by this NWP. 
General condition 13, removal of temporary fills, requires temporary 
fills to be removed in their entirety and the area revegetated, as 
appropriate. We do not believe it is necessary to define ``temporary 
pad'' for purposes of this NWP, since it is simply a temporary fill 
that must be removed upon completion of the survey activity. We do not 
agree that exploratory trenching should be prohibited below the 
ordinary high water mark since these activities result in temporary 
impacts to the aquatic environment.
    This NWP is reissued with the modification discussed above.
    NWP 7. Outfall Structures and Associated Intake Structures. We did 
not propose any changes to NWP. One commenter objected to the 
reissuance of this NWP, stating that these activities adversely affect 
aquatic vegetation or areas designated as critical habitat for fish 
foraging and spawning, through increases in turbidity, discharges of 
nutrients and contaminants, alteration of near-shore areas, and 
scouring vegetation within the plume. Another commenter recommended 
that outfall structures not be placed in wetlands or constructed in 
such a manner that would create shoreline pockets capable of trapping 
debris. One commenter recommended conditioning this NWP to ensure that 
the outfall structure not extend into the receiving water and impair 
navigation. One commenter suggested that for activities proposed to 
occur on state-owned submerged lands, a separate authorization would be 
required from that state.
    In waters that have been designated as Essential Fish Habitat in 
accordance with the Magnuson-Stevens Fishery Conservation and 
Management Act, consultation with the National Marine Fisheries Service 
will be conducted for proposed activities that may adversely affect 
Essential Fish Habitat. That consultation will often result in 
conservation recommendations that will protect habitat for fish 
foraging and spawning. General condition 22, designated critical 
resource waters, will also reduce adverse effects to fish foraging and 
spawning areas caused by NWP activities in those critical resource 
waters. Division engineers may regionally condition this NWP to 
restrict or prohibit its use in specific waters, including those that 
provide important habitat. In response to a pre-construction 
notification, district engineers may also exercise discretionary 
authority if the proposed activity would result in more than minimal 
adverse effects on the aquatic environment, including vegetated 
shallows and fish spawning and feeding areas. These structures may be 
designed so that they do not trap debris. General condition 14, proper 
maintenance, requires authorized structures and fills to be properly 
maintained, which may include periodic removal of debris from outfall 
structures and associated intake structures, to ensure that these 
structures continue to function properly, do not trap debris, and do 
not cause more than minimal adverse effects to nearshore aquatic 
environments. Compliance with general condition 1, navigation, will 
prevent adverse impacts to navigation. Permittees are responsible for 
obtaining any other Federal, state or local permits that may be 
required.
    The NWP is reissued without change.
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We 
proposed to modify this NWP to update the name of the former Minerals 
Management Service to the Bureau of Ocean Energy Management Regulation, 
and Enforcement (BOEMRE).
    One commenter expressed support for the proposed modification. One 
commenter recommended that no oil and gas structures or activities be 
authorized through the nationwide permit process.
    After the proposal to reissue this NWP was published, the Bureau of 
Ocean Energy Management (BOEM) became the agency responsible for 
issuing leases for oil and gas structures on the outer continental 
shelf. We have modified the text of NWP 8 to reflect this change. This 
NWP only authorizes structures

[[Page 10195]]

erected within areas of the outer continental shelf leased by the 
Bureau of Ocean Energy Management. The general environmental concerns 
are addressed in the required NEPA documentation prepared by BOEM prior 
to issuing a lease. The Corps role is limited to reviewing impacts on 
navigation and national security, as stated in 33 CFR part 322.5(f).
    This NWP is reissued as proposed.
    NWP 9. Structures in Fleeting and Anchorage Areas. There were no 
changes proposed for this NWP, and no comments were received. This NWP 
is reissued without change.
    NWP 10. Mooring Buoys. There were no changes proposed for this NWP. 
One commenter stated a notice to Tribes needs to be provided to avoid 
adverse effects to Tribal treaty fishing access. One commenter 
recommends prohibiting the use of this NWP in ``downgraded shellfish 
harvest areas.'' Another commenter said that the permit should be 
conditioned to require permittee's to provide information on the 
location of the mooring buoy, including a site plan drawn to scale that 
shows the distance of the buoy from the shore, mark the Corps permit 
number on the buoy, and a statement that the buoy satisfies U.S. Coast 
Guard requirements. One commenter suggested adding a limit on the 
number of buoys installed per acre, based on the number and size of the 
moored vessels.
    Division engineers can regionally condition this NWP to prohibit 
its use in areas where mooring buoys may impact access to Tribal 
treating fishing areas. General condition 18 states that NWP activities 
cannot impair reserved tribal rights. Division engineers can impose 
regional conditions to restrict or prohibit its use in shellfish 
harvesting areas. We do not agree that pre-construction notification 
for the activities authorized by this NWP is necessary, to require 
prospective permittees to submit detailed information on the location 
of the proposed mooring buoy, a detailed site plan, and a statement 
that it complies with U.S. Coast Guard requirements. All applicable 
Coast Guard regulations must be complied with independent of the 
conditions in this NWP. We believe that it is not necessary to limit 
this NWP, at the national level, to install a particular number of 
mooring buoys per acre. Division engineers may also regionally 
condition this NWP to impose such restrictions.
    This NWP is reissued without change.
    NWP 11. Temporary Recreational Structures. There were no changes 
proposed for this NWP. One commenter recommended requiring that 
structures authorized under this NWP be removed immediately after use 
ceases, instead of the 30 days specified in the NWP.
    The Corps believes that the current requirements for the removal of 
temporary structures are sufficient. Where necessary, shorter time 
periods for removal can be imposed through regional conditioning or 
through special conditions provided in activity-specific NWP 
verifications.
    The NWP is reissued without change.
    NWP 12. Utility Line Activities. We proposed to modify this NWP to 
clarify how to calculate the loss of waters of the United States for a 
single and complete project that involves an access road. This proposed 
change was intended as a clarification of long-standing practice, not a 
substantive revision.
    Several commenters supported the proposed change to this NWP. 
Another commenter stated the proposed clarification would severely 
restrict the use of NWP 12, because it changes the definition of single 
and complete project. One commenter requested further clarification of 
the intent and applicability of the term ``single and complete'' and 
suggested we replace it with ``single and complete linear projects'' 
wherever the former phrase is found in NWP 12 since the NWP applies to 
linear projects and their associated facilities and activities. Two 
commenters requested confirmation that the calculation of impacts for 
purposes of satisfying the NWP 12 threshold is done separately for each 
crossing. Another commenter objected to the definition of ``single and 
complete project'' at 33 CFR 330.2(i) and the NWP definitions section 
and stated mitigation should be required for utility lines that result 
in the loss of greater than \1/2\-acre.
    This modification of the NWP does not change the definition of 
single and complete project and does not affect its implementation, 
except to clarify that only losses of waters of the United States 
associated with a single and complete project would be considered when 
determining whether the acreage limit or pre-construction notification 
threshold is exceeded. However, it is correct that the Corps long-
standing practice (which we are not changing) has been to generally 
calculate impacts for purposes of satisfying the \1/2\-acre threshold 
separately for each separate and distant crossing, and we have 
clarified this in the definitions section by adding separate 
definitions that explain how single and complete projects are 
determined for linear and non-linear projects. We do not agree that in 
the text of this NWP the term ``single and complete project'' should be 
replaced with ``single and complete linear project.'' Although the vast 
majority of utility lines are linear projects where the crossings are 
at separate and distant locations, and thus considered separate single 
and complete projects, there may be circumstances where the separate 
crossings of a waterbody are too close together to be considered 
separate single and complete projects, and one NWP authorization would 
be evaluated for those closely-spaced crossings. Therefore, we have 
retained the more generic term ``single and complete project'' in the 
text of this NWP. Other supporting components of a utility line, such 
as substations, may not be considered linear projects in some 
circumstances. District engineers may exercise discretionary authority 
and require compensatory mitigation for utility line activities that 
require pre-construction notification and result in the loss of aquatic 
resources.
    One commenter stated the Corps should clarify that the only 
relevant activity for purposes of NWP 12 is a discharge of dredged or 
fill material into waters of the United States. One commenter said that 
no discharges should be authorized in waters below the ordinary high 
water mark or in areas that provide fish habitat functions. This 
commenter also said that utility lines should be buried at least six 
feet below the authorized federal channel depth. One commenter stated 
that mechanized land clearing of forested wetlands for installation of 
utility lines should not be authorized by NWP 12.
    The activities authorized by this NWP are not limited to discharges 
of dredged or fill material. This NWP also authorizes structures or 
work in navigable waters of the United States that require 
authorization under Section 10 of the Rivers and Harbors Act of 1899. 
We do not agree that discharges should be prohibited in open waters, 
below the ordinary high water mark. Such activities often result in 
minimal adverse effects on the aquatic environment and qualify for 
general permit authorization. Division engineers can restrict or 
prohibit use of this NWP in certain waters, through the approval of 
regional conditions. The appropriate depth a utility line should be 
buried below a federal channel should be determined on a case-by-case 
basis. Mechanized landclearing of a forested wetland in a utility line 
right-of-way may only result in a conversion of wetland type, and not 
result in permanent loss of waters of the United States. District 
engineers may require compensatory mitigation to offset permanent 
losses of wetland functions when such mechanized landclearing occurs in 
forested wetlands.

[[Page 10196]]

    One commenter stated that authorizing the loss of \1/2\-acre of 
waters of the United States for each crossing results in more than 
minimal adverse environmental effects. Another commenter said that the 
\1/2\-acre limit should apply to the entire utility line project, 
because the cumulative effects of the utility line must be considered. 
One commenter stated that this NWP should also limit stream impacts to 
300 linear feet. Several commenters asked whether the conversion of a 
forested wetland to a scrub-shrub wetland counts toward the \1/2\-acre 
limit.
    The \1/2\-acre limit applies to each crossing that is considered to 
be a separate single and complete project, because they are sited at 
distant locations from other crossings that constitute the linear 
project. Each separate and distant crossing should be evaluated to 
determine if it meets the terms and conditions of the NWP, and 
cumulative effects of the overall utility line should be evaluated to 
determine if the adverse cumulative effects on the aquatic environment 
are more than minimal and therefore do not qualify for NWP 
authorization. Separate utility line crossings are usually on different 
water bodies, and may also be in widely separated watersheds. Such 
factors should be considered when assessing cumulative impacts. The 
``Definitions'' section provides further clarification on single and 
complete projects. The conversion of a forested wetland to a scrub 
shrub wetland does not constitute a permanent loss of waters of the 
United States, and thus does not count towards the acreage limit, even 
though it may result in the permanent loss of certain functions, which 
may require compensatory mitigation.
    One commenter said that some utility lines and associated renewable 
energy projects may have unintended negative impacts on the Department 
of Defense mission. For example, high voltage transmission lines could 
potentially interfere with long-range radar surveillance, homeland 
defense, testing, and training missions. This commenter requested that 
pre-construction notifications for NWP 12 activities involving the 
construction of overhead utility lines in waters of the United States 
be coordinated with the Department of Defense, by sending a copy of the 
pre-construction notification to the Department of Defense Siting 
Clearinghouse. Department of Defense Siting Clearinghouse staff will 
review the pre-construction notification and contact the project 
proponent if they identify potential negative impacts to Department of 
Defense operations, testing, and training missions.
    We have added Note 4 to this NWP, which states that a copy of the 
pre-construction notification will be provided to the Department of 
Defense Siting Clearinghouse if the proposed activity involves an 
overhead utility line constructed in waters of the United States. This 
coordination process will not interfere or delay the district 
engineer's decision on the pre-construction notification, which must be 
made within the timeframes specified in the NWP general conditions. The 
coordination process will consist of districts sending the Department 
of Defense Siting Clearinghouse copies of pre-construction 
notifications and NWP verifications, and Clearinghouse staff will work 
with project proponents to address effects to military operations.
    One commenter stated that the definition of a utility line in the 
NWP is too expansive and should not include liquescent or slurry 
substances. This commenter asked if utility lines could also be used to 
transport waste products. One commenter stated that terms and 
conditions of the NWP should require projects to use existing trenches 
or cables whenever possible, and require that sidecast material be put 
back in place within 24 hours. One commenter requested that temporary 
fill be defined and that compensatory mitigation should be required for 
temporary fills left in place for two years. One commenter said that 
enforcing the time periods for temporary side casting is too difficult. 
One commenter requested more detail regarding the circumstances under 
which a district engineer would extend the period of temporary side 
casting up to a total of 180 days. One commenter stated the side 
casting in areas with known or probable sediment contamination should 
be prohibited. One commenter stated the placement of excavated 
materials into any waterway should be prohibited.
    Water or sewer lines are generally recognized to be utility lines, 
and are used to transport liquid or slurry substances. They may also be 
used to transport waste products, such as sewage or industrial 
byproducts. We do not agree that existing trenches or cable should be a 
requirement of this NWP, since many new utility lines constructed in 
waters of the United States result in minimal adverse effects on the 
aquatic environment. However, project sponsors should consider the use 
of existing trenches and cables where practicable as one way of 
avoiding or minimizing adverse impacts to the aquatic environment, 
which is required by general condition 23, mitigation. It is not 
practicable to require side cast material to be put back into the 
original trench or pit within 24 hours, and we have retained the 
current language concerning temporary side casting. It is the district 
engineer's discretion on whether to extend the period of temporary side 
casting. That discretion would be based on the site-specific 
environmental conditions, the activity, practicability considerations, 
and other factors. District engineers can restrict or prohibit side 
casting in areas where sediment contamination may be a concern. 
Excavated materials are generally not placed in flowing waters, and 
should be retained in areas outside of flowing waters with proper 
sediment and erosion controls.
    One commenter objected to authorizing the expansion of utility line 
substations, stating that those activities should require individual 
permits and a finding of compliance with the Clean Water Act Section 
404(b)(1) Guidelines and public interest review.
    The expansion of utility line substations does not generally 
warrant a full public interest review and activity-specific Section 
404(b)(1) Guidelines analysis since it is an expansion of an existing 
facility. In response to a pre-construction notification, the district 
engineer will review the proposed expansion of a substation and 
exercise discretionary authority if it would result in more than 
minimal individual and cumulative adverse effects on the aquatic 
environment.
    Two commenters stated the construction of temporary access roads 
will require a submerged lands authorization and would require a 
submerged land lease for long-term use.
    The use of NWP 12 does not obviate the need for the project 
proponent to obtain any other federal, state, or local permits that may 
be required, including permits from states that hold title to submerged 
lands.
    One commenter said that this NWP should have fewer pre-construction 
notification thresholds to expedite pipeline safety repairs and 
infrastructure projects. One commenter supported retaining the \1/10\-
acre threshold pre-construction notification.
    We believe all of the current pre-construction notification 
thresholds are necessary because of the variety of utility line 
activities authorized by NWP 12 (i.e., utility line construction, 
maintenance, repair, and removal, the construction, maintenance, or 
expansion of utility line substations, the construction or maintenance 
of foundations for overhead transmission lines, and the construction of 
access roads) and to allow district engineers

[[Page 10197]]

the opportunity to review those activities to determine whether they 
will result in minimal adverse effects on the aquatic environment. 
Pipeline maintenance may be authorized by NWP 3 or NWP 12, and use of 
NWP 3 would not usually trigger a pre-construction notification 
requirement. Many pipeline maintenance activities may also be 
authorized by NWP 12, without pre-construction notification. The \1/
10\-acre pre-construction notification threshold remains in this NWP.
    One commenter recommended that this NWP require the use of specific 
equipment such as low ground pressure equipment and wide tires to 
minimize adverse effects to wetlands. Another commenter said that this 
NWP should be conditioned to require the use of best management 
practices to reduce sediment loads into waters. One commenter stated 
that this NWP does not require sufficient avoidance and minimization of 
waters of the United States. One commenter suggested requiring the 
installation of barriers next to utility line trenches to prevent 
amphibians and reptiles from falling into the trench and to reduce 
sediment transport into waters of the United States during 
precipitation events. One commenter said that pipes installed over 
rivers and streams should have shut-off valves to minimize the 
potential for discharges to occur if the pipe is breached.
    The use of equipment that minimizes adverse effects to waters of 
the United States is addressed by general condition 11, equipment, 
which requires permittees to take measures to minimize soil 
disturbance, such as placing heavy equipment on mats when working in 
wetlands, mudflats, or other waters. Division or district engineers may 
condition this NWP, either through the regional conditioning process or 
through activity-specific conditions added to an NWP 12 authorization, 
to require the use of best management practices. General condition 23, 
mitigation, requires permittees to design and construct their 
activities to avoid and minimize adverse effects to waters of the 
United States. A requirement to install barriers next to utility line 
trenches, or the use of shut-off valves in pipes constructed over 
waters, is more appropriately addressed through the regional 
conditioning process or through activity-specific conditions added to 
an NWP 12 authorization during the review of a pre-construction 
notification or NWP verification request.
    One commenter stated that this NWP could streamline the 
authorization of offshore wind energy generation facilities, but two of 
the terms and conditions may be problematic. The first is the 
prohibition against side casting when sediments would be dispersed by 
currents or other forces. The second is the \1/2\-acre limit, which may 
prohibit use of this NWP to authorize the installation of cables that 
transfer the energy generated by wind turbines.
    The transmission cable that runs from an offshore wind energy 
generation facility to a land-based facility or distribution system may 
be constructed so that the trench for the cable is backfilled 
immediately after the cable is laid into the trench. That immediate 
backfilling would minimize dispersion by currents or other forces in 
those waters. The placing of a power transmission cable on the sea bed 
is considered a structure under our regulations for implementing 
Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(b)), 
and not a loss of waters of the United States subject to the \1/2\-acre 
limit in NWP 12.
    One commenter recommended requiring coordination with Tribes to 
avoid impacts to Tribal treaty natural resources and cultural 
resources. Another commenter said that coordination with State Historic 
Preservation Officers should be required to protect historic 
properties.
    Division engineers can regionally condition this NWP to require 
coordination with Tribes, to ensure that this NWP does not adversely 
affect Tribal treaty natural resources and cultural resources. General 
condition 20, historic properties, addresses compliance with the 
National Historic Preservation Act, which requires consultation for 
activities that have the potential to cause effects to historic 
properties, including tribal resources that meet the definition of 
``historic property.'' General condition 17, tribal rights, requires 
that no NWP activity or its operation may impair reserved treaty 
rights, such as reserved water rights and treaty fishing and hunting 
rights.
    One commenter requested clarification that individual permits are 
not automatically required for NWP 12 activities when a Corps district 
participates as a cooperating agency for an environmental impact 
statement.
    Even though an environmental impact statement may be prepared for a 
particular utility line, the National Environmental Policy Act process 
does not prohibit the Corps from using NWP 12 to authorize the 
construction, maintenance, repair, and removal of utility lines and 
associated facilities in waters of the United States, as long as the 
activity complies with all applicable terms and conditions and results 
in minimal individual and cumulative adverse effects on the aquatic 
environment. NEPA requires consideration of all environmental impacts, 
not only those to aquatic resources, so there may well be situations 
where aquatic impacts are minimal even though environmental impacts 
more generally are not. These other environmental impacts would be 
addressed by the lead agency preparing the environmental impact 
statement. The district engineer will exercise discretionary authority 
to require an individual permit for any utility line activity that he 
or she determines does not meet the terms and conditions of NWP 12.
    One commenter suggested modifying Note 1 to limit submission of NWP 
12 pre-construction notifications and verifications to the National 
Oceanic and Atmospheric Administration's National Ocean Service (NOS), 
since NOS only produces charts for waters in the coastal United States, 
Great Lakes, and United States territories.
    We have modified Note 1 to require district engineers to send 
copies of NWP 12 pre-construction notifications and verifications to 
NOS in those regions of the country.
    This NWP is reissued with the modifications discussed above.
    NWP 13. Bank Stabilization. We proposed modifying this NWP by 
removing the waiver provision in paragraph (c) that allowed district 
engineers to authorize bank stabilization fills that exceeded one cubic 
yard per running foot below the ordinary high water mark or high tide 
line to encourage the use of bioengineered techniques for bank 
stabilization. To conform with the proposed change to in paragraph (c), 
we proposed to remove the third pre-construction notification threshold 
for bank stabilization fills that exceeded one cubic yard per running 
foot, since these fills would no longer be allowed. We also proposed 
changing this NWP to authorize temporary structures and fills necessary 
for the construction of bank stabilization activities.
    Many commenters recommended that this NWP not be reissued, and 
stated that all bank stabilization should be evaluated under individual 
permit procedures. One commenter asserted that bank stabilization 
activities should be authorized with NWP 3 in man-made ditches and 
canals and NWP 13 in natural waterways. Two commenters said this NWP 
should not authorize new bank stabilization activities. Some commenters 
recommended modifying this NWP so that it would not authorize new 
vertical bulkheads and seawalls.

[[Page 10198]]

One commenter stated that this NWP does not result in minimal 
individual and cumulative adverse effects on the aquatic environment 
because these activities accelerate coastal erosion and retreat. 
Additional commenters said that these activities result in more than 
minimal individual and cumulative effects. Some of these commenters 
said that this NWP has more than minimal adverse effects on low-order 
ephemeral and intermittent streams. One commenter said that this NWP 
should not be applicable to both riverine and lacustrine systems and 
recommended that separate NWPs be developed that would address the 
different erosional processes in those systems. Several commenters 
stated that this NWP should not be reissued because of adverse effects 
to coastal environments, as well as sea turtles and other endangered 
species and their habitats. Another commenter recommended that bank 
stabilization only be permitted by this NWP if it is part of a habitat 
improvement project or has other net improvements in aquatic function.
    The terms and conditions for this NWP are appropriate for limiting 
bank stabilization activities so that they have minimal individual and 
cumulative effects on the aquatic environment, while allowing 
landowners and other entities to protect their property and safety. NWP 
3 only authorizes minor amounts of rip rap associated with maintenance 
activities. It is more appropriate to authorize bank stabilization 
activities in man-made waterways through NWP 13. In many coastal waters 
and rivers it is necessary to utilize hard bank protection structures, 
because wave energy and currents are too strong for bioengineering or 
other techniques to successfully prevent or reduce erosion. We do not 
agree that there should be separate NWPs developed to authorize bank 
stabilization activities in riverine and lacustrine waters. Bank 
stabilization that may affect endangered or threatened species require 
pre-construction notification and compliance with general condition 18, 
endangered species. We also do not agree that this NWP should be 
limited to habitat improvement projects, because it is often necessary 
to install bank stabilization structures and fills to protect property 
and safety.
    Two commenters said that NWP 13 should not be reissued because it 
authorizes activities that may prevent retreat that would be necessary 
to adapt to sea level rise caused by climate change. These commenters 
also said that sea level rise needs to be considered in the decision on 
whether to reissue this NWP. These commenters also stated that the 
structures and fills authorized by NWP 13 exacerbate erosion in areas 
where sea level rise will occur.
    Coastal and riparian areas are dynamic landscapes. They are 
constantly changing as a result of erosional and depositional 
processes. Landowners seek Department of the Army authorization for 
bank stabilization activities to protect their property and provide 
safety. The purpose of NWP 13 activities is to protect land on which 
residences, commercial buildings, infrastructure, and other features 
are located. The Corps regulations recognize that a riparian landowner 
has a right to protect his or her property from erosion (see 33 CFR 
320.4(g)(3)). When a district engineer evaluates a permit application 
for bank stabilization activities, including pre-construction 
notifications for NWP 13 activities, he or she considers the current 
environmental conditions at the site of the proposed activity, as well 
as the reasonably foreseeable direct, indirect, and cumulative effects 
that might be caused by the proposed activity. At the present time, 
there is a considerable amount of uncertainty surrounding climate 
change, and any associated sea level rise that may occur as a result of 
climate change. To the extent there is reliable information about 
projected sea level rise during the reasonably foreseeable future in 
the vicinity of a proposed activity, the district engineer will take 
that information into account when determining whether a proposed NWP 
13 activity will have minimal individual and cumulative adverse effects 
on the aquatic environment. We do not agree that the structures and 
fills authorized by NWP 13 will accelerate erosion in areas affected by 
changing sea level rise caused by climate change. The bank 
stabilization structures and fills authorized by this NWP must be 
properly designed, so that they have minimal individual and cumulative 
adverse effects on coastal and riparian erosion and deposition 
processes. As sea level rise occurs, bank stabilization activities may 
no longer be effective, and it may be necessary for landowners to 
relocate.
    Two commenters suggested limiting all projects to a maximum length 
of 500 linear feet, except for allowing bioengineering projects to 
exceed that length on a case-specific basis if the district engineer 
waives that limit. One commenter recommended not allowing vertical 
bulkheads longer than 500 feet. One commenter recommended limiting 
replacement of vertical bulkheads and seawalls to a maximum length of 
200 feet. Another commenter recommended a 300 linear foot maximum 
project length for shoreline protection on coastal areas or lakes. One 
commenter suggested a 300 linear foot maximum length for bioengineering 
projects and a 150 foot maximum length for all other bank stabilization 
projects. Two commenters requested clarification regarding project 
length in paragraph (b) as it relates to activities that stabilize both 
banks (left and right) of a stream. Many commenters supported the 
district engineer waiver for the 500 linear foot limit for any 
projects.
    The limits in this NWP are sufficient to ensure that the NWP 
authorizes only those activities that have minimal adverse effects on 
the aquatic environment, although division engineers may regionally 
condition the NWP to reduce those limits to account for local 
environmental conditions and the ecological functions and services 
provided by waters of the United States in those areas. For streams, 
the linear foot limit in paragraph (b) applies to a single and complete 
project for the bank stabilization activity measured along the length 
of the stream segment, which may involve discharging dredged or fill 
material along either one or both stream banks. We have retained the 
ability for district engineers to waive the 500 linear foot limit.
    One commenter requested a definition for bank stabilization. Many 
commenters asked for a definition of bioengineering. One commenter said 
that bioengineering techniques should include living plant material and 
soil as the primary structural components to reinforce soil and to 
stabilize slopes. One commenter recommended requiring native vegetation 
in bioengineering projects where vegetation is the primary or secondary 
component of a project.
    We do not believe that a definition of bioengineering is necessary 
because there is a wide variety of bioengineering techniques and 
project proponents and district engineers generally understand what it 
means in a local context. It is not possible at the national level to 
envision every possible variation of technique and materials that would 
reasonably fit within the meaning of this term, but generally 
bioengineering involves the use of a combination of vegetation and hard 
materials instead of only hard materials such as rip-rap for bank 
stabilization. Also, as explained below, the final NWP does not make a 
distinction between bioengineering and other bank stabilization 
techniques. We agree that bioengineering, for the purposes of bank 
stabilization, includes providing protection from erosion and

[[Page 10199]]

providing habitat for aquatic species. We also agree that bioengineered 
techniques can slow erosion rates and can have beneficial effects on 
habitat for macroinvertebrates and fish which is why we proposed to 
modify this NWP to encourage greater use of this technique.
    Several commenters recommended the NWP encourage the use of natural 
materials over riprap. One commenter said that only native plant 
species should be used for bioengineered bank stabilization. Another 
commenter recommended using natural stream design methods for erosion 
prevention. Several commenters objected to the placement of plant 
material in waters of the United States, and also objected to the 
planting of willows and similar species in and along waterways because 
these types of woody plants clog waterways and cause maintenance 
problems at bridge and culvert crossings.
    Division engineers can regionally condition this NWP to encourage 
bioengineering or the use of natural materials for bank stabilization 
in waters subject to lower energy waves and currents. The use of plant 
materials as a component of a bank stabilization activity can have 
beneficial environmental effects, such as providing shading and habitat 
for near-shore organisms, or for riparian ecosystems. Proper 
maintenance should be done to remove plants that colonize waterways, 
especially at culverts or bridges. We have added a provision to this 
NWP stating that if bioengineering or vegetative bank stabilization is 
used, invasive plant species should not be used, because Executive 
Order 13112, Invasive Species, states that agencies should not 
``authorize, fund, or carry out actions that it believes are likely to 
cause or promote the introduction or spread of invasive species in the 
United States or elsewhere.'' The Executive Order states there are 
economic, ecological, and human health impacts that are caused by 
invasive species, and we believe that invasive species should not be 
used for bioengineering bank stabilization activities authorized by 
this NWP because of the adverse environmental effects those species can 
cause.
    Many commenters supported the proposed modification of paragraph 
(c) to only allow bioengineering projects to exceed one cubic yard per 
running foot, and to not allow waivers from the district engineer for 
other types of projects. Many other commenters objected to limiting 
that flexibility to bioengineering techniques, stating that bank 
protection structures are necessary in high energy coastal and riverine 
environments, and said that the waiver in the 2007 NWP 13 should be 
reinstated. Some commenters suggested removing paragraph (c) entirely. 
Several of these commenters thought the proposal would encourage 
bioengineering methods for achieving the necessary bank stabilization. 
Many commenters stated that the waiver to the cubic yard limit should 
be removed from paragraph (c) to ensure that the NWP authorizes only 
those activities with minimal adverse effects on the aquatic 
environment. Many commenters asserted that bioengineering methods for 
bank stabilization are unproven and not as effective at preventing 
erosion as hard structures. A few commenters suggested that the 
preference for bioengineering would be a hardship on local governments. 
Another commenter suggested that bioengineering techniques are rarely 
successful in arid areas and in ephemeral waterways. Another commenter 
added that the hydraulic forces in large rivers and tidal areas require 
the use of large stone, the size of which exceeds the one cubic yard 
per running foot average size, and are not conducive to bioengineering. 
Several commenters said that bioengineering is not always appropriate 
for protecting infrastructure such as roads and bridges, and requested 
that the one cubic yard per foot waiver be left in place to protect 
these structures. One commenter suggested modifying the NWP to require 
alternatives analyses for each proposed project using an established 
hierarchy, beginning with bioengineering as the most preferable bank 
stabilization method and ending with the hard bank stabilization 
structures. One commenter observed that bank stabilization using 
bioengineering or any other method will still result in adverse 
effects, and suggested all bank stabilization activities should be 
located landward of the ordinary high water mark.
    In response to the many commenters that objected to removing the 
provision allowing district engineers to waive, after reviewing a pre-
construction notification, the one cubic yard per running foot limit, 
we have reinstated that provision in this NWP. We have also reinstated 
the third pre-construction notification threshold that was in the 2007 
version of NWP, which requires pre-construction notification for 
discharges exceeding one cubic yard per running foot along the bank 
below the plan of the ordinary high water mark or the high tide line. 
We acknowledge that bioengineering may not be appropriate in all 
waters, because it may not result in effective bank stabilization. We 
have thus determined that it is not appropriate to establish a 
hierarchy of preferred bank stabilization options because such 
decisions are best left to district engineers that review project-
specific pre-construction notifications, and can take into account the 
characteristics of the waterbody and the surrounding area, and 
determine which bank stabilization method would be most effective and 
environmentally preferable. We agree, however, that bioengineering 
techniques may be environmentally preferable in many situations and 
that project proponents should consider such techniques where 
practicable in order to comply with the general requirement to avoid 
and minimize adverse effects to the aquatic environment. It is not 
practicable to require all bank stabilization activities to be located 
landward of the ordinary high water mark.
    One commenter asked if the volume of fill buried deeply below 
bioengineering or turf reinforcement mats could be exempted from the 
volume of fill that counts towards the one cubic yard per running foot 
limit in paragraph (b). Another commenter said that buried stone does 
not meet the regulatory definition of fill material, and said the 
volume of stone buried below the ordinary high water mark should not 
count towards the one cubic yard per running foot limit. One commenter 
suggested replacing the words ``below the plane of'' with ``within 
the'' when describing the ordinary high water mark in paragraph (c).
    The definition of ``fill'' found in 33 CFR part 323.2 clearly 
states that rock is fill material, and burying rock in a waterway 
constitutes a discharge of fill material. The volume of the buried 
stone, along with all other fill material, must be determined and that 
volume placed below the plane of the ordinary high water mark or high 
tide line is considered when reviewing the proposed project. We have 
retained the language in NWP because the phrase ``below the plane of '' 
more accurately describes the Corps jurisdiction in waters of the 
United States. To the extent that the location and type of fill placed 
below the plane of the ordinary high water mark affects the potential 
for adverse effects to the aquatic environment, the district engineer 
would consider such factors in deciding whether to grant a waiver 
request.
    Several commenters said that paragraph (d) should prohibit fills in 
special aquatic sites, including wetlands. One commenter opposes 
removing the waiver provision in

[[Page 10200]]

paragraph (d) for work in special aquatic sites.
    We believe that the pre-construction notification process affords 
the district engineer an appropriate opportunity to review proposed 
activities in special aquatic sites. Many streams and shorelines 
include, or are bordered by, special aquatic sites, and precluding use 
of this permit in these areas severely limits its usefulness for 
projects that have no more than minimal adverse effects on the aquatic 
environment. Additionally, it may be beneficial in some watersheds to 
stabilize eroding banks, even though small amounts of special aquatic 
sites may be impacted by a bank stabilization activity. Paragraph (d) 
requires a written determination concluding that the activity will 
result in minimal adverse effects. If a written waiver is not issued by 
the district engineer, then this NWP does not authorize such activities 
and the project proponent will have to obtain another form of DA 
authorization.
    Several commenters expressed support for inclusion of temporary 
fills required to accomplish work authorized under this NWP. One 
commenter said that temporary fills should remain in place if their 
removal would do more damage than allowing them to remain in place. One 
commenter requested a list of mandatory best management practices 
developed for temporary fills authorized by this NWP.
    If the district engineer determines that temporary fills should 
remain in place those fills may be authorized by another NWP, a 
regional general permit, or individual permit. We do not agree that 
specifically requiring best management practices is appropriate, 
although division engineers may regionally condition this NWP to add 
appropriate best management practices. District engineers may also add 
conditions to the NWP to require specific best management practices for 
a particular activity.
    Several commenters stated that pre-construction notification should 
be required for all activities authorized by this NWP. One commenter 
requested that no pre-construction notification be required for any 
bank stabilization exceeding one cubic yard per running foot in 
ephemeral and intermittent waters. One commenter suggested removing all 
pre-construction notification requirements from work done under this 
NWP in man-made waterways. One agency recommended lowering a pre-
construction notification threshold to 100 feet for hard bank 
stabilization projects such as riprap, and 300 feet for bioengineering 
projects. One commenter claimed it would be burdensome and costly to 
submit a pre-construction notification for every bank stabilization 
project.
    We do not agree that it is necessary to require pre-construction 
notification for all activities authorized by this NWP. A large number 
of small bank stabilization activities are conducted each year that 
result in minimal adverse effects on the aquatic environment. We 
believe that the existing pre-construction notification thresholds are 
sufficient for satisfying the minimal adverse effects requirement for 
general permits, and division engineers can regionally condition this 
NWP to impose lower pre-construction notification thresholds, including 
requiring pre-construction notification for all activities.
    Two commenters said that bank stabilization activities must avoid 
impacting tribal rights, tribal natural resources, and tribal cultural 
resources. Many commenters said that while bank stabilization projects 
may reduce erosion at a site, they may transfer or accelerate erosion 
in other areas of a waterbody.
    General condition 17, tribal rights, prohibits the impairment of 
all reserved tribal rights. We acknowledge that bank stabilization 
activities may cause indirect effects in other areas of the waterbody 
and those indirect effects should be evaluated during the review of a 
pre-construction notification, if it is required. Activities that do 
not require a pre-construction notification have minimal adverse 
effects on the aquatic environment.
    Some commenters asked that compensatory mitigation be required for 
all activities authorized by this NWP. A few commenters remarked that 
compensatory mitigation should be required for adverse effects on high 
quality riparian areas. Another commenter said that mitigation should 
be required when sheet piling is used to stabilize banks.
    We do not believe compensatory mitigation should be required for 
all bank stabilization activities. District engineers will determine 
when compensatory mitigation is necessary to ensure that an activity 
results in minimal individual and cumulative adverse effects on the 
aquatic environment.
    This NWP is reissued with the modifications discussed above.
    NWP 14. Linear Transportation Projects. There were no changes 
proposed for this NWP. One commenter suggested that this NWP should 
authorize only the maintenance of existing linear transportation 
projects because the construction of new linear transportation projects 
results in more than minimal adverse environmental effects. One 
commenter said that this NWP should not authorize parking lots. One 
commenter stated that activities in tidal waters should not be 
authorized by this NWP because any proposed linear transportation 
project impacting tidal wetlands require an individual permit to more 
thoroughly assess impacts on those aquatic habitats.
    This NWP should not be limited to authorizing the maintenance of 
existing linear transportation projects. The terms and conditions of 
this NWP, including its acreage limits and pre-construction 
notification thresholds, provide an effective means for authorizing 
linear transportation projects with minimal individual and cumulative 
adverse effects on the aquatic environment. Parking lots may be an 
integral part of a single and complete linear transportation project 
and may be authorized under this NWP. Small linear transportation 
projects constructed or maintained in tidal waters may be authorized by 
this NWP, if they comply with appropriate thresholds and result in 
minimal adverse effects on the aquatic environment. Division engineers 
can regionally condition this NWP to restrict or prohibit the use of 
this NWP to authorize structures or fills in tidal waters where 
necessary.
    Most commenters suggested adding a linear foot limit to this NWP to 
ensure that it only authorizes activities with minimal adverse effects 
on the aquatic environment, stating that the current NWP authorizes 
large amounts of small streams to be permanently lost or significantly 
altered. One commenter recommended a 100 linear foot limit for the loss 
of perennial, intermittent, and ephemeral streams. One commenter said 
that the \1/2\-acre limit is too large when compared to other NWPs that 
limit impacts to \1/10\-acre. One commenter suggested limiting private 
roads to 200 feet in length, with a maximum width of 16 feet. One 
commenter recommended that public road projects with multiple crossings 
should have a maximum cumulative limit of two acres for all crossings 
associated with that project.
    We believe the \1/2\-acre and \1/3\-acre limits are appropriate for 
ensuring that the NWP authorizes only those linear transportation 
projects that result in minimal individual and cumulative adverse 
effects on the aquatic environment. Division engineers can regionally 
condition this NWP to decrease these acreage limits or impose linear 
foot limits to provide additional protection for wetlands and other 
waters

[[Page 10201]]

in a particular district or region. We do not agree that public and 
private crossings should have different acreage limits. The 
environmental effects are not dependent on the status of the entity who 
proposes to construct the project. A 200 linear foot limit was removed 
from NWP 14 in 2007 to simplify this NWP. The Corps is not aware of 
situations where this change resulted in projects being authorized that 
had more than minimal adverse effects.
    One commenter asserted that using this NWP prevents the public from 
commenting on large transportation projects. Another commenter said 
that this NWP should not authorize expansion of existing projects, 
because it discourages avoidance and minimization and is contrary to 
the 404(b)(1) Guidelines. One commenter stated that use of this NWP for 
the expansion, modification, or improvement of previously authorized 
projects could result in cumulative impacts that exceed the acreage 
limits and said the impacts of previously authorized projects should 
count towards the acreage limit.
    Linear transportation projects that involve small losses of waters 
of the United States and result in minimal adverse effects on the 
aquatic environment would not generally generate substantive public 
comments in response to a public notice and should not require public 
notices. It is appropriate to authorize expansions, modifications, or 
improvements to existing projects, as long as those activities comply 
with the terms and conditions of the NWP, including the applicable 
acreage limit. An expansion, modification, or improvement of an 
existing project has few practicable alternatives available because it 
is a change to a previously constructed project. Alternatives that 
would involve relocating an existing project are likely to result in 
more adverse effects to the aquatic environment. An expansion, 
modification, or improvement of a previously authorized single and 
complete linear transportation project should include the previously 
authorized losses of waters of the United States when determining 
whether the acreage limit would be exceeded by the expanded, modified, 
or improved project, if the expansion, modification, or improvement is 
not a separate single and complete project. Factors that may affect 
this determination include the length of time between the original 
project and the expansion, modification or improvement; the degree of 
independent utility of the original project and the expansion, 
modification or improvement; and the degree to which the expansion, 
modification or improvement may have been already envisioned, or 
planning might already have begun, at the time the original project was 
authorized. Under no circumstance will district engineers allow 
``piecemealing'' of projects (for this or any other NWP) in order to 
meet thresholds.
    One commenter requested that the term ``minimum necessary'' used in 
the first paragraph of this NWP be defined. One commenter asked if 
temporary fill may be put in place for up to two years without 
requiring any mitigation, and another commenter requested a definition 
for ``temporary.'' One commenter suggested that culverts or other 
appropriate measures should be required to maintain existing drainage 
patterns, all stream crossings should span the bankfull width of a 
stream, and in cases where bottomless culverts or bridge structures are 
not used, the bottom of the structure should match stream slope. 
Another commenter suggested that the NWP should require the use of best 
management practices to avoid sediment loading of waters and that best 
management practices should be used in upland areas and within waters 
to protect downstream water quality.
    The decision as to whether a stream channel modification is the 
``minimum necessary'' and whether a fill is ``temporary'' is to be 
determined on a case-by-case basis, after considering the specifics of 
the proposed activity and the types of aquatic resources proposed to be 
impacted by the linear transportation project. General condition 2, 
aquatic life movements, and general condition 9, management of water 
flows, require that linear transportation projects be designed to 
sustain corridors for aquatic life movements and maintain, to the 
maximum extent practicable, the pre-construction course, condition, 
capacity, and location of streams and other open waters. General 
condition 12, soil erosion and sediment controls, requires permittees 
to take appropriate measures to reduce or prevent movements of sediment 
into waters during construction. Water quality management measures may 
also be required by district engineers on a case-by-case basis after 
evaluating a pre-construction notification.
    One commenter said that pre-construction notification should be 
required for stream impacts that exceed 100 linear feet. Another 
commenter stated that any stream channel modifications should require 
pre-construction notification. One commenter suggested requiring low 
ground pressure equipment, wide tires, rubberized racks, lightweight 
equipment, and the use of varied paths to avoid repeatedly crossing 
wetlands at the same location, to protect wetlands. One commenter 
suggested sending pre-construction notifications to tribes to avoid 
impacts to tribal treaty natural and cultural resources. One commenter 
recommended that the Corps consult with the Federal Highway 
Administration to streamline projects and align with their efforts.
    The present pre-construction notification thresholds provide 
sufficient protection for streams, and division engineers can 
regionally condition this NWP to require pre-construction notification 
for proposed losses of stream beds that would exceed a specified 
amount. Streams with riffle and pool complexes are considered to be 
special aquatic sites under the 404(b)(1) Guidelines and would require 
pre-construction notification. General condition 11, equipment, 
establishes requirements for equipment working in wetlands or mudflats 
and we believe this general condition provides sufficient protection 
for those types of construction impacts. Division engineers can 
regionally condition this NWP to require pre-construction notification 
for activities that may affect tribal treaty resources, and consult 
with those tribes before making a decision on whether the activity is 
authorized by this NWP. This NWP, as well as other NWPs such as NWP 23, 
provides a means for streamlining the authorization of linear 
transportation projects and working cooperatively with the Federal 
Highway Administration and state departments of transportation.
    The NWP is reissued without change.
    NWP 15. U.S. Coast Guard Approved Bridges. We proposed to modify 
this NWP by removing reference to the U.S. Coast Guard authorizing the 
discharge of dredged or fill material into waters of the United States 
as part of their bridge permit. We also proposed to reference the U.S. 
Coast Guard's bridge permitting authority under Section 9 of the Rivers 
and Harbors Act of 1899 and other applicable laws. We proposed to add 
section 10 to the regulatory authorities so that discharges authorized 
under Section 404 of the Clean Water Act would be also authorized under 
the Rivers and Harbors Act.
    One commenter agreed with adding section 10 authority to this NWP, 
which they believed would help clarify a sometimes confusing permitting 
scenario. Another commenter objected to adding section 10 authority, 
stating that the section 9 permits issued by the

[[Page 10202]]

U.S. Coast Guard for bridge and causeway construction satisfy all 
requirements of the Rivers and Harbors Act of 1899 and adding section 
10 authorization is not necessary. One commenter requested 
clarification regarding the applicability of section 10 to the U.S. 
Coast Guard approved bridges over both navigable-in-fact and 
historically navigable waters of the United States. One commenter 
requested definitions of the terms ``causeway'' and ``approach fills.''
    We agree that the U.S. Coast Guard's section 9 permit satisfies the 
permit requirements of the Rivers and Harbors Act and have removed the 
reference to section 10 from the NWP. Discharges of dredged or fill 
material associated with the construction of bridges across navigable 
waters of the United States require separate authorization under 
Section 404 of the Clean Water Act, since navigable waters of the 
United States are also considered waters of the United States under the 
Clean Water Act, and discharges of dredged or fill material into waters 
of the United States require section 404 permits, unless they are 
eligible for an exemption from permit requirements. Historically 
navigable waters of the United States may still be subject to 
jurisdiction under Rivers and Harbors Act of 1899, depending on the 
case-specific circumstances. We do not believe it is necessary to 
define what causeways and approach fills are, since they would be 
identified in the specific plans approved by the U.S. Coast Guard as 
part of their section 9 permit.
    This NWP is reissued with the modification discussed above.
    NWP 16. Return Water From Upland Contained Disposal Areas. We did 
not propose any changes to this NWP. This NWP provides section 404 
authorization for the discharge of return water from a dredged material 
placement facility located in uplands, because that discharge of return 
water into waters of the United States has been administratively 
defined as a ``discharge of dredged material'' (see 33 CFR 
323.2(d)(1)(ii)). One commenter said the NWP should address both the 
technical requirements and water quality of the return water due to the 
potential for the return water to degrade water quality for natural 
heritage resources. One commenter said that pre-construction 
notification should be required for activities authorized by this NWP 
to ensure that suspended contaminated sediments do not reenter 
waterways and impact state submerged lands.
    The water quality certification issued for a specific dredging 
project should address any water quality concerns for natural heritage 
resources. We do not agree that pre-construction notification should be 
required for this NWP because any required sediment testing would 
identify contaminants. The sediment testing and potential impacts to 
water quality are more appropriately considered through the water 
quality certification process. We have modified this NWP to clarify 
that disposal of dredged material in an area that has no waters of the 
United States does not require a section 404 permit, because disposal 
of dredged material may occur in non-jurisdictional wetlands and 
waters, not just uplands.
    The NWP is reissued with the modification discussed above.
    NWP 17. Hydropower Projects. No changes were proposed for this NWP. 
Several commenters said that this category of activities is 
inappropriate for authorization under an NWP because of the scope and 
scale of these projects. One commenter stated that these activities 
result in more than minimal adverse effects on the aquatic environment, 
especially downstream effects such as the loss of riffle and pool 
complexes and degradation of water quality through increased sediment 
loads.
    This NWP authorizes small hydropower projects that have minimal 
adverse effects on the aquatic environment. All activities authorized 
by this NWP require pre-construction notification, so that district 
engineers can review each proposed hydropower project and make a case-
specific determination whether the minimal effects requirement has been 
met. Discretionary authority will be exercised, and another form of 
Department of the Army authorization would be required, if the district 
engineer determines that a particular hydropower project would result 
in more than minimal individual and cumulative adverse effects to the 
aquatic environment or any other public interest review factor. 
District engineers may also require compensatory mitigation to offset 
losses of aquatic resource functions.
    This NWP is issued without change.
    NWP 18. Minor Discharges. We did not propose modifications to this 
NWP. Several commenters expressed support for the reissuance of this 
NWP. 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 be more than minimal. Another commenter said that this NWP should 
not authorize discharges into waters that provide forage fish habitat 
or that contain aquatic vegetation. One commenter stated that the NWP 
should not be used to authorize discharges in rare aquatic environments 
such as vernal pools.
    We believe that the small discharges of dredged or fill material 
authorized by this NWP comply with the similar in nature requirement 
for general permits. District engineers will review pre-construction 
notifications and may assert discretionary authority to add activity-
specific conditions to the NWP authorization to ensure that the 
activity results in minimal adverse environmental effects. Division 
engineers may regionally condition this NWP to restrict or prohibit its 
use in specific waters or categories of waters, including fish foraging 
areas, vegetated shallows, or vernal pools.
    One commenter stated that the limit for this NWP should only be 
expressed in terms of area filled (i.e., up to \1/10\-acre) and not 
include the volumetric limit (i.e., 25 cubic yards). Another commenter 
said that all discharged material should consist of clean, 
uncontaminated sand, crushed rock, or stone. One commenter recommended 
adding language requiring that the discharge will not result in 
significant changes to stream geomorphology or hydrology, and that the 
discharge will not impede navigation.
    The 25 cubic yard limit for regulated excavation activities and the 
\1/10\-acre limit for losses of waters of the United States caused by 
discharges of dredged or fill material are both necessary to ensure 
that this NWP authorizes only those activities that have minimal 
individual and cumulative adverse effects on the aquatic environment. 
General condition 6, suitable material, prohibits the use of unsuitable 
fill material. The fill material must not have toxic pollutants that 
are present in toxic amounts. Compliance with general condition 9, 
management of water flows, will ensure that the activity does not cause 
more than minimal adverse effects to stream geomorphology or hydrology. 
General condition 1, navigation, states that NWP activities cannot 
cause a more than minimal adverse effect to navigation.
    This NWP is reissued without change.
    NWP 19. Minor Dredging. There were no changes proposed for this 
NWP. One commenter recommended that the NWP include a cumulative volume 
limit for multiple single and complete dredging projects. One commenter 
recommended modifying the NWP to require that dredge material be 
limited to a maximum of 25 cubic yards from a 1,000 square foot area, 
not disturb sediments in an area known or

[[Page 10203]]

suspected to contain toxic pollutants, and the disposal of dredged 
material at an upland location. Another commenter said that pre-
construction notification should be required for all activities to 
ensure that sediments are not contaminated and do not cause impacts to 
state owned land. One commenter stated that the activities authorized 
by this NWP are not similar in nature and do not result in cumulative 
minimal adverse environmental effects.
    This NWP may be used only once for each single and complete project 
(see general condition 15, single and complete project). Therefore, 
each single and complete dredging project is subject to the 25 cubic 
yard limit. District engineers will also review pre-construction 
notifications and other requests for NWP verifications, and will 
exercise discretionary authority if they determine that the use of this 
NWP in a particular region is resulting in more than minimal cumulative 
adverse effects on the aquatic environment. We believe that the 25 
cubic yard limit is sufficient to satisfy the minimal adverse 
environmental effects requirement for general permits, and that an 
areal limit, such as the 1,000 square feet recommended above, is not 
necessary. Division engineers may impose regional conditions on this 
NWP to restrict or prohibit its use in waters known to have 
contaminated sediments or in waters where there is sufficient reason to 
believe that there are contaminated sediments, that would cause more 
than minimal adverse effects to water quality if they were disturbed by 
these minor dredging activities. A separate Department of the Army 
authorization must be obtained if the project proponent plans to 
deposit the dredged material into waters of the United States, 
including jurisdictional wetlands. Absent such authorization, the 
dredged material must be deposited in an upland area or an approved 
dredged material disposal facility.
    This NWP is reauthorized without change.
    NWP 20. Response Operations for Oil and Hazardous Substances. We 
proposed to change the name of this NWP, and modify its terms and 
conditions to authorize a wider set of activities, such as containment 
and mitigation actions, to more effectively authorize efforts to manage 
releases of oil or hazardous substances. We also proposed to authorize 
training exercises for the cleanup of oil and hazardous substances, 
including those that involve temporary structures or fills.
    Five commenters expressed support for the proposed changes to this 
NWP. One commenter objected to the proposed modifications, stating that 
the NWP could authorize large dredge and fill operations that would 
result in net adverse effects on the aquatic environment that would be 
more than minimal. One commenter stated that the NWP should be limited 
to interim response activities and that a separate permit should be 
required for final restoration response. Another commenter said that 
there should be a requirement to remove temporary structures and fill. 
This commenter also recommended that the NWP include criteria for 
temporary structures or fills, such as a requirement to restore 
wetlands to the maximum extent practicable, to ensure there are no 
lasting impacts from these activities. A commenter said that this NWP 
should require coordination with the appropriate state wetland or water 
resources program.
    This NWP authorizes activities in waters of the United States to 
remediate spills of oil and hazardous substances, which normally 
results in environmental benefits. We do not agree that the NWP should 
be limited to interim responses. It should also authorize the final 
response activity that results in the removal of the oil or hazardous 
substances, as well as the authorization to remove any temporary 
structures or fills, to the extent that a Department of the Army permit 
is required to remove such temporary structures or fills. General 
condition 13, removal of temporary fills, requires temporary fills to 
be removed in their entirety, and the affected areas revegetated, if 
necessary. We do not agree that this NWP should require coordination 
with state wetland or water resource agencies, since those agencies are 
likely to have an independent authority to regulate such response 
activities, as well as their own procedures for reviewing and approving 
those activities. As a practical matter, such remediation efforts 
almost always involve coordination among multiple agencies.
    This NWP is reissued as proposed.
    NWP 21. Surface Coal Mining Activities. We proposed three options 
concerning this NWP. The first option was not to reissue NWP 21 and to 
let it expire on March 18, 2012. The other two options consisted of 
reissuing the NWP with modifications. Option 2 was to reissue NWP 21 
with a \1/2\-acre limit, including a 300 linear foot limit for the loss 
of stream bed. Under Option 2, NWP 21 would not authorize discharges of 
dredged or fill material into waters of the United States to construct 
valley fills. Option 3 was similar to Option 2, but under Option 3 NWP 
21 could authorize discharges of dredged or fill material into waters 
of the United States to construct valley fills. In the February 16, 
2011, proposal, Option 2 was identified as the Corps preferred option. 
Both Options 2 and 3 require a pre-construction notification for 
activities authorized by NWP 21, and permittees would have to receive 
written authorization from the district engineer prior to commencing 
the activity.
    A large majority of commenters supported Option 1 and opposed the 
reissuance of NWP 21, including any modification of that NWP. Over 
26,000 of those comments were form letters. Several commenters 
recommended adopting Option 2. Two commenters supported Option 3. Many 
commenters stated that NWP 21 should be reissued without change from 
the NWP issued in 2007.
    While some commenters expressed support for Option 1, they also 
said that if NWP 21 is to be reissued, Option 2 should be selected and 
modified to remove the provision allowing district engineers to waive 
the 300 linear foot limit for the loss of intermittent or ephemeral 
stream bed. Another commenter stated that if NWP 21 is reissued, it 
should not authorize any losses of intermittent or perennial streams.
    We believe that district engineers should have the ability to waive 
the 300 linear foot limit for the loss of ephemeral or intermittent 
stream bed if they make a case-specific determination that the proposed 
activity will result in minimal individual and cumulative adverse 
effects on the aquatic environment. For proposed activities under 
paragraph (b) of NWP 21 that would result in the loss of greater than 
300 linear feet of intermittent or ephemeral stream bed, district 
engineers will coordinate the pre-construction notifications with the 
resource agencies, to solicit their comments (see paragraph (d) of 
general condition 31). Those comments will be used by the district 
engineer in making his or her minimal adverse effects determination. 
The loss of intermittent or perennial streams caused by NWP 21 
activities may still result in minimal individual and cumulative 
adverse effects on the aquatic environment, and in such cases 
authorization by NWP is appropriate. Note that the 300 linear foot 
limit may not be waived for perennial streams. Activities authorized 
under paragraph (a) of NWP 21 do not require agency coordination 
because paragraph (a) does not authorize any expansion of surface coal 
mining activities in waters of the United States and the district 
engineer previously determined, and must again

[[Page 10204]]

confirm in writing, that those activities will result in minimal 
individual and cumulative adverse effects and qualify for NWP 
authorization. Many of the surface coal mining activities authorized 
under the 2007 NWP 21 already had agency coordination because they 
resulted in the loss of greater than \1/2\-acre of waters of the United 
States.
    Many commenters stated their preference for Option 2 because it 
would not allow valley fills for surface coal mining activities, which 
they believe substantially alter watersheds and associated headwater 
streams, and generally are alleged to cause more than minimal adverse 
effects on the aquatic environment. One commenter suggested adding a 
provision that would prohibit the use of NWP 21 for activities 
associated with mountain-top removal mining.
    We have selected Option 2 for the reissuance of NWP 21, and have 
made some additional modifications to reduce hardships on permittees 
who previously obtained authorization under the NWP 21 issued on March 
12, 2007, and invested substantial resources in reliance on that NWP 
authorization. These modifications are discussed in greater detail 
below. In addition, we have added a definition of ``valley fill'' to 
the NWP to clarify the activities to which the valley fill prohibition 
applies. For the purposes of this NWP, a ``hollow fill'' is considered 
a valley fill. This NWP authorizes discharges of dredged or fill 
material into waters of the United States when those discharges are 
associated with surface coal mining activities. The Corps review is 
focused on the individual and cumulative adverse effects to the aquatic 
environment, and determining appropriate mitigation that may be needed 
to ensure that the adverse effects on the aquatic environment are 
minimal, individually and cumulatively. It does not extend to the 
mining operation as a whole. The Surface Mining Control and Reclamation 
Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., and its implementing 
regulations address the environmental impacts of proposed surface coal 
mining operations as a whole, including adverse effects to uplands and 
changes in land use. SMCRA is administered by the Office of Surface 
Mining Reclamation and Enforcement and states with approved regulatory 
programs under SMCRA.
    Two commenters supported Option 3, and they said the production of 
energy from all sources, including surface-mined coal, is vitally 
important to the short-term economic recovery of the United States and 
the long-term energy independence and economic prosperity of our 
country. Another commenter said there is no need to limit NWP 21 to \1/
2\-acre and 300 linear feet and prohibit valley fills, because district 
engineers review every pre-construction notification and can require an 
individual permit if necessary.
    We have adopted Option 2 because it provides greater assurance that 
NWP 21 will authorize only those discharges of dredged or fill material 
into waters of the United States that have minimal individual and 
cumulative adverse effects on the aquatic environment. Surface coal 
mining activities that involve discharges of dredged or fill material 
that require section 404 permits but do not qualify for NWP 21 may be 
authorized by other forms of Department of the Army authorization, such 
as individual permits or regional general permits. We have added the 
\1/2\-acre limit, and the 300 linear foot limit for the loss of stream 
bed, to make this NWP consistent with many of the other NWPs (e.g., 
NWPs 29, 39, 40, 42, 43, 44, and 51). We have also added a prohibition 
against using this NWP to authorize discharges of dredged or fill 
material into waters of the United States to construct valley fills. 
Such limits are necessary to constrain the adverse effects to the 
aquatic environment, to ensure compliance with the statutory 
requirement that general permits, including NWPs, may only authorize 
those activities that have minimal individual and cumulative adverse 
effects on the aquatic environment. We do not believe it is efficient 
to rely on the pre-construction notification process alone to ensure 
minimal adverse environmental effects. Many other NWPs use a 
combination of acreage and/or linear foot limits and pre-construction 
notification requirements to ensure compliance with Section 404(e) of 
the Clean Water Act, as well as 33 CFR 322.2(f) and 33 CFR 323.2(h).
    Previous versions of NWP 21 did not have any acreage or linear foot 
limits, and relied solely on the pre-construction notification review 
process and permit conditions to reduce adverse effects on the aquatic 
environment to satisfy the minimal adverse environmental effects 
requirement for general permits. We believe that approach is no longer 
appropriate because of the inconsistency with other NWPs, the 
possibility that larger losses of waters of the United States might be 
authorized, and the difficulty of documenting minimal adverse effect 
determinations for losses of aquatic resource area and functions that 
exceed those allowed in other NWPs. We note that part of the basis for 
the earlier approach was the environmental review that occurs in 
connection with obtaining a SMCRA permit, and that the SMCRA 
regulations related to stream protection have changed since the 
previous NWP 21 was issued.\1\ The new acreage and linear foot limits 
will ensure that this NWP contributes no more than minimal individual 
and cumulative adverse effects to the aquatic environment, by limiting 
the amount of waters of the United States that can be filled by each 
NWP 21 activity.
---------------------------------------------------------------------------

    \1\ The Office of Surface Mining has announced its intention to 
further revise these requirements however such revisions will not be 
in place at the time the NWPs are reissued. The Corps may reconsider 
these limits in future promulgations of the NWPs based on its 
experience and any changes in the broader regulatory context.
---------------------------------------------------------------------------

    Many commenters said the Corps should fulfill its June 2009 
determination to prohibit the use of NWP 21 to authorize surface coal 
mining activities in six states in Appalachia because these activities 
result in more than minimal adverse effects to the aquatic environment, 
individually and cumulatively. Some commenters said the proposed 
reissuance of NWP 21 is contrary to the Corps June 18, 2010, decision 
to suspend NWP in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia, which stated that 
continued use of this NWP may result in more than minimal adverse 
effects to aquatic resources. Many commenters stated that surface coal 
mining activities in Appalachia have resulted in the loss of a couple 
of thousand miles of streams, substantially degraded water quality, and 
are harmful to the health and drinking water of Appalachian citizens. 
They also said the Corps should follow science and stop issuing 
permits, including individual permits, for surface coal mining 
activities in these six Appalachian states because those activities 
cause significant degradation of waters of the United States, and this 
region cannot afford to lose more of its vital natural resources.
    In accordance with the June 11, 2009, memorandum of agreement 
implementing the interagency action plan on Appalachian Surface Coal 
Mining, which was signed by the Department of the Army, the Department 
of Interior, and the U.S. Environmental Protection Agency, the Corps 
issued a proposal in the Federal Register on July 15, 2009, to modify 
NWP 21 so that it would not authorize discharges of dredged or fill 
material into waters of the United States in the Appalachian region of 
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and

[[Page 10205]]

West Virginia (see 74 FR 34311). In the June 18, 2010, issue of the 
Federal Register (75 FR 34711), the Corps announced the suspension of 
NWP 21 in the Appalachian region of six states (i.e., Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia) and said that it 
would consider modifying NWP 21.
    As a result of our review of the comments received in response to 
the February 16, 2011, proposal we have determined that it would be 
appropriate to adopt Option 2 and substantially modify NWP 21 by 
imposing acreage and linear foot limits, as well as prohibiting its use 
to authorize discharges of dredged or fill material into waters of the 
United States to construct valley fills associated with surface coal 
mining activities, to ensure that the NWP authorizes only those 
activities that result in minimal individual and cumulative adverse 
effects on the aquatic environment. The \1/2\-acre and 300 linear foot 
limits will substantially reduce the amount of stream bed and other 
waters lost as a result of activities authorized by this NWP, and limit 
this NWP to minor fills associated with surface coal mining activities, 
such as the construction of sediment ponds. Issues relating to the use 
of individual permits to authorize discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining activities are outside the scope of the NWP reissuance process 
and are not addressed in this rule.
    The proposed reissuance of NWP 21, as well as the selection of 
Option 2 to reissue the NWP with \1/2\-acre and 300 linear foot limits 
and a prohibition against authorizing discharges of dredged or fill 
material into waters of the United States to construct valley fills, is 
not contrary to the suspension of NWP 21 in the Appalachian region of 
these six states. The NWP reissued today has been substantially 
modified from the 2007 version of NWP 21, with paragraph (a) 
authorizing Corps district engineers to re-authorize activities that 
were previously verified under the 2007 NWP 21 authorization where that 
would be appropriate, and paragraph (b) imposing the acreage and linear 
foot limits stated above, as well as the condition prohibiting its use 
for the construction of valley fills in waters of the United States, on 
new NWP 21 activities. The substantial changes in the terms and 
conditions of the reissued NWP 21 will ensure that the activities 
authorized by this NWP result in minimal individual and cumulative 
adverse effects on the aquatic environment. District engineers will 
review pre-construction notifications for activities authorized under 
paragraph (b) of this NWP and may require compensatory mitigation to 
offset losses of waters of the United States and ensure the adverse 
effects on the aquatic environment are minimal, individually and 
cumulatively. Compensatory mitigation required for activities verified 
under the 2007 NWP 21 will continue to be required, and may be 
augmented if the district engineer determines that they do not 
adequately compensate for losses of aquatic resource function and 
ensure minimal individual and cumulative adverse effects. Suspension of 
an NWP is an interim measure to be taken if there are substantive 
concerns that an NWP activity is potentially causing more than minimal 
adverse environmental effects, while the Corps collects additional 
information and considers modifications to that NWP to satisfy 
statutory or regulatory requirements for general permits, such as 
compliance with Section 404(e) of the Clean Water Act. We fully 
considered the comments received in response to the July 15, 2009, 
proposal to suspend NWP 21 and used those comments to develop the three 
options presented in the February 16, 2011, proposal to reissue NWP 21. 
We have now determined that adopting Option 2 addresses the concern 
that led to our previous suspension of NWP 21 in the six Appalachian 
states, but in a more effective and equitable way. It is not the 
geographic location of activities, but rather the nature of these 
activities and their associated discharges that may lead to more than 
minimal adverse effects. By prohibiting the use of NWP 21 for 
discharges associated with valley fills and activities exceeding 
appropriate thresholds, which are consistent with the thresholds used 
for many other NWPs, we can ensure that activities that may result in 
more than minimal individual and cumulative adverse effects obtain 
individual permits, and those activities that will not result in more 
than minimal adverse effects can be authorized by an NWP, regardless of 
the region of the country in which they occur.
    Only those surface coal mining activities involving discharges into 
waters of the United States that received written authorization under 
the 2007 NWP 21 may be eligible for authorization under paragraph (a) 
of this NWP. Activities that were subject to the June 18, 2010, 
suspension of NWP 21 in the Appalachian region of the six states may be 
eligible for NWP 21 authorization under paragraph (b) if they do not 
result in the loss of greater than \1/2\-acre of waters of the United 
States, do not result in the loss of greater than 300 linear feet of 
stream bed (unless that 300 linear foot limit for intermittent and 
ephemeral streams is waived by the district engineer after agency 
coordination and making a written determination that the activity will 
result in minimal individual and cumulative adverse effects on the 
aquatic environment), and do not involve discharges of dredged or fill 
material into waters of the United States to construct valley fills.
    One commenter objected to the proposed reissuance of NWP 21, 
stating that it authorizes impacts for activities that are not similar 
in nature, such as mining operations, impoundments, processing plants, 
and road crossings. The commenter said that the Corps decision 
documents do not recognize that impoundments can cause massive spills 
or contaminate well water.
    We do not agree that this NWP authorizes activities that are not 
similar in nature. This NWP authorizes surface coal mining activities, 
a broad category that includes a variety of features that may be 
constructed by discharging dredged or fill material into waters of the 
United States, the activities regulated by the Corps under Section 404 
of the Clean Water Act. Discharges of dredged or fill material into 
waters of the United States may be used to construct sediment ponds, 
road crossings, etc. that are necessary to conduct surface coal mining 
activities, or they may occur while coal is being mined (e.g., mine-
throughs). Impoundments constructed in waters of the United States 
should be properly maintained (see general condition 14, proper 
maintenance). District engineers may also require non-Federal 
permittees to demonstrate that those impoundment structures comply with 
applicable dam safety criteria (see general condition 24, safety of 
impoundment structures).
    One commenter said that if NWP 21 was reissued and could be used to 
authorize valley fills, the Corps would violate the requirement in the 
404(b)(1) Guidelines that no discharge of dredged or fill material 
shall be permitted which will cause or contribute to significant 
degradation of waters of the United States. This commenter also stated 
that the proposed 300 linear foot limit for the loss of stream bed 
would not prevent significant degradation of streams, and objected to 
the proposed waiver of that limit for intermittent and ephemeral 
streams, if the district engineer determined that such a loss would 
result in minimal adverse effects on the aquatic environment.

[[Page 10206]]

    The NWP 21 reissued today does not authorize discharges of dredged 
or fill material into waters of the United States to construct valley 
fills, unless under paragraph (a) the activity was previously verified 
under the 2007 NWP 21 and the district engineer has determined that 
those activities still qualify for NWP 21 authorization under the 2012 
NWP general conditions, applicable regional conditions, and any 
activity-specific conditions such as compensatory mitigation 
requirements. For those previously authorized surface coal mining 
activities, the district engineer determined that the adverse effects 
on the aquatic environment are minimal, individually and cumulatively. 
To re-verify the NWP authorization under the 2012 NWP 21, the district 
engineer must determine that the activity continues to result in 
minimal individual and cumulative adverse effects on the aquatic 
environment. Surface coal mining activities that involve discharges of 
dredged or fill material into waters of the United States for the 
construction of valley fills that were not previously verified under 
the 2007 NWP 21 are subject to paragraph (b) of the 2012 NWP 21 and 
cannot be authorized by NWP 21. Discharges of dredged or fill material 
into waters of the United States authorized by NWP 21 require water 
quality certification. If water quality certification is not obtained 
or waived, that activity is not authorized by NWP 21. The water quality 
certifications issued by states are to be considered by district 
engineers to be conclusive regarding water quality issues, unless the 
Regional Administrator of the U.S. Environmental Protection Agency 
advises the district engineer of other water quality concerns that need 
to be taken into consideration. The construction of impoundments 
authorized by NWP 21 is generally a minor cause of changes to water 
quality. Most of the changes to water quality are due to the overall 
surface coal mining activity and the change in land use (including 
uplands) that occurs as a result of those mining activities. The 
discharges of dredged or fill material into waters of the United States 
authorized by NWP 21 constitute a small proportion of the overall fill 
placed in a watershed to dispose of the rock, soil, and other materials 
that are produced by the surface coal mining activity. As water 
percolates through the larger overall fill that has been placed in 
uplands and streams, the water chemistry changes. The effluent 
discharged from impoundments constructed to trap sediments and other 
materials to reduce their transport to downstream waters is regulated 
under Section 402 of the Clean Water Act, and requires a National 
Pollutant Discharge Elimination System (NPDES) permit. The NPDES permit 
is issued by states that have approved programs or the U.S. EPA.
    One commenter said the Corps has ignored cumulative impacts from 
discharges of dredged or fill material previously authorized by NWP 21 
in proposing Option 2 as a preferred alternative. The commenter also 
stated that the draft decision documents fail to provide any evidence 
that would support a minimal effects determination and that the Corps 
only considers cumulative effects during the five year period the NWP 
is in effect and this ignores the fact that valley fills bury streams 
permanently, whether authorized by past nationwide or individual 
permits, or in the future. The commenter also said that Option 2 
ignores the cumulative amount of stream loss or acreage in a watershed 
from multiple permits.
    We have taken into account cumulative impacts from discharges of 
dredged or fill material previously authorized by NWP 21, and 
cumulative effects of discharges of dredged or fill material previously 
authorized by individual permits, when developing the proposal to 
reissue NWP 21, including Option 2. For NWP 21 activities that were not 
previously authorized by the 2007 NWP 21, paragraph (b) of NWP 21 
imposes a \1/2\-acre limit on NWP 21, as well as a 300 linear foot 
limit for losses of stream bed, and does not authorize discharges of 
dredged or fill material into waters of the United States to construct 
valley fills. These changes will reduce the number of surface coal 
mining activities authorized by NWP 21, when compared to previous 
versions of NWP 21, which had no acreage or linear foot limits, and 
could be used to authorize discharges of dredged or fill material into 
waters of the United States to construct valley fills. We determined 
that these limits will ensure that the adverse effects of discharges 
authorized by NWP 21 are minimal, both individually and cumulatively. 
Under the National Environmental Policy Act, an assessment of 
cumulative effects has to consider the past, present, and reasonably 
foreseeable future actions regardless of what agency (Federal or non-
federal) or person undertakes such actions (see 40 CFR 1508.7). In 
addition, the 404(b)(1) Guidelines require a different approach to 
cumulative effects analysis for the issuance of a general permit, such 
as NWP 21. The 404(b)(1) Guidelines require the Corps or other 
permitting authority to predict cumulative effects by evaluating the 
number of individual discharges of dredged or fill material into waters 
of the United States expected to be authorized by that general permit 
until it expires (see 40 CFR 230.7(b)(3)).
    The decision document for this NWP includes evaluations of 
cumulative effects under both approaches, and concludes that the 
reissuance of this NWP, including the imposition of the \1/2\-acre 
limit, 300 linear foot limit, and prohibition against authorizing 
valley fills on activities that were not previously authorized under 
the 2007 NWP 21, as well as the pre-construction notification 
requirements and other procedural safeguards, will authorize only those 
activities with minimal individual and cumulative adverse effects on 
the aquatic environment. Activities authorized under the 2007 NWP 21 
were already determined by district engineers to result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
The other procedural safeguards include the authority for division 
engineers to modify, suspend, or revoke NWP 21 authorizations on a 
regional basis, and the authority for district engineers to modify NWP 
21 authorizations by adding conditions, such as compensatory mitigation 
requirements, to ensure minimal individual and cumulative adverse 
effects on the aquatic environment. District engineers may also assert 
discretionary authority to require individual permits in cases where 
the adverse effects will be more than minimal.
    Under the National Environmental Policy Act approach to assessing 
cumulative effects, the decision document discusses, in general terms, 
the various activities (Federal, non-Federal, and private actions) that 
may adversely affect the quantity and quality of aquatic resources in a 
watershed or other geographic region used for cumulative effects 
analysis, regardless of whether those activities occurred in the past 
or are expected to occur in the present or reasonably foreseeable 
future. Under the 404(b)(1) Guidelines approach for assessing 
cumulative effects of the issuance of a general permit such as NWP 21, 
the decision document evaluates the number of discharges of dredged or 
fill material into waters of the United States expected to occur during 
the five-year period the NWP would be in effect, as well as the 
estimated loss of waters of the United States and compensatory 
mitigation. District and division engineers are to supplement these

[[Page 10207]]

analyses when they prepare supplemental decision documents for this 
NWP, and these supplemental decision documents are to include 
cumulative effects analyses at a regional level. which can be highly 
informative regarding impacts at a local watershed level. The 
appropriate geographic scope of those cumulative effects analyses are 
at the discretion of the division or district engineers.
    The Corps considers and addresses cumulative environmental effects 
of NWP 21 (and other NWPs) in two distinct ways. First, when Corps 
Headquarters evaluates and proposes to issue or re-issue a NWP (such as 
NWP 21), we evaluate cumulative effects at the national level, using 
available national information on aquatic resource status and trends 
and the general effects human activities have on aquatic resources. The 
cumulative effects analyses presented in the Headquarters decision 
documents reflect these national-scale evaluations and conclusions 
supporting the promulgation of the NWP from Corps Headquarters.
    Second, division and district engineers monitor the use of the NWPs 
on a regional level, and will modify, suspend, or revoke applicable 
NWPs when necessary if the use of those NWPs is likely to result in 
more than minimal individual and cumulative adverse effects on the 
aquatic environment within a particular watershed, ecoregion, state, 
county, or other appropriate geographic area. To address regional and 
site-specific environmental considerations, we rely on the Corps 
district offices that receive pre-construction notifications required 
by the terms and conditions of the NWP to evaluate the relevant 
regional and site-specific environmental considerations. The Corps 
district may add conditions to the NWP authorization, including 
compensatory mitigation requirements, to ensure that the individual and 
cumulative adverse effects on the aquatic environment caused by the NWP 
activity are minimal, and therefore qualify for NWP authorization. If 
conditions cannot be added to the NWP authorization to ensure that 
minimal individual and cumulative adverse effects on the aquatic 
environment occur, the district engineer will exercise discretionary 
authority and notify the applicant that an individual permit is 
required.
    One commenter said there is insufficient support for the Corps 
position that the required compensatory mitigation will attenuate 
cumulative impacts on the Nation's aquatic resources by providing 
aquatic resource functions and services, so the net effects will be 
minimal. Another commenter stated that the Corps relies heavily on 
mitigation, such as stream creation, restoration, and enhancement, but 
there is no evidence that stream creation works. The commenter also 
indicated that the 404(b)(1) Guidelines provide that no permit may rely 
on mitigation techniques unless they have been demonstrated to be 
effective in circumstances similar to those under consideration, and 
that the 2008 compensatory mitigation rule requires that the district 
engineer assess the likelihood for ecological success. The commenter 
said the Corps cannot issue an NWP without assessing mitigation 
effectiveness and success in the specific context in which the 
mitigation technique would be used. The commenter concluded that the 
Corps mitigation analysis fails to contain any discussion of stream 
functions that would be lost from potential NWP activities and whether 
compensatory mitigation can replace those functions.
    Compensatory mitigation can be an effective means of offsetting 
losses of aquatic resource functions caused by activities authorized by 
Department of the Army permits, including NWP 21 activities, if it is 
thoughtfully planned, implemented, and monitored. Compensatory 
mitigation projects must be carefully sited, planned, and designed to 
be ecologically successful in providing stream or wetland functions. 
Site selection is a critical step in developing and implementing an 
ecologically successful compensatory mitigation project. With the 
promulgation of 33 CFR part 332 on April 10, 2008 (73 FR 19594), the 
Corps Regulatory Program adopted requirements and standards to improve 
compensatory mitigation practices for offsetting losses of aquatic 
resource functions. Under the 2008 rule, a watershed approach should be 
used for establishing compensatory mitigation requirements that will 
successfully provide aquatic resource functions to offset losses of 
those functions caused by permitted activities.
    The 2008 rule identifies streams as ``difficult-to-replace'' 
resources and states that if further avoidance and minimization of 
stream impacts is not practicable, the required compensatory mitigation 
should be provided through stream rehabilitation, enhancement, or 
preservation since those techniques have a greater certainty of success 
(see 33 CFR 332.3(e)(3)). The preamble to the 2008 rule includes a 
detailed discussion of the scientific status of stream restoration and 
concludes that there has been success with stream rehabilitation, 
enhancement, and preservation activities (see 73 FR 19596-19598). In 
accordance with the 2008 rule, the Corps is not relying on stream 
creation as a mechanism to provide compensatory mitigation for NWP 21 
activities. In cases where compensatory mitigation is required for NWP 
21 activities, those compensatory mitigation requirements will be 
specified as activity-specific conditions of NWP 21 authorizations. The 
required components of a compensatory mitigation plan are specified at 
33 CFR 332.4(c)(2)-(14), and the district engineer will evaluate each 
compensatory mitigation proposal to assess its potential for ecological 
success, and consider the relevant factors provided in 33 CFR 332.3. 
The compensatory mitigation plan must be approved by the district 
engineer and monitoring will be required to assess whether the 
compensatory mitigation project is meeting its objectives and is 
successfully meeting its ecological performance standards. The district 
engineer will review monitoring reports, and if the compensatory 
mitigation project is not meeting its ecological performance standards, 
he or she will require the responsible party to identify and implement 
adaptive management measures to make changes to provide a successful 
mitigation project. If adaptive management is not likely to result in 
an ecologically successful compensatory mitigation project that will be 
sufficient for offsetting lost aquatic resource functions that result 
from the permitted activity, alternative compensatory mitigation may be 
required. Financial assurances may also be required to help ensure the 
success of the required compensatory mitigation.
    The 404(b)(1) Guidelines, which address habitat development and 
restoration as a means of minimizing adverse effects to plant and 
animal populations (40 CFR 230.75(d)), recommend the use of techniques 
that have been demonstrated to be effective. That provision is 
consistent with the section on difficult-to-replace resources (33 CFR 
332.3(e)(3)/40 CFR 230.93(e)(3)), which states that rehabilitation, 
enhancement, and preservation should be used to provide the required 
compensatory mitigation to offset permitted impacts to such resources 
because there is greater certainty that such stream rehabilitation, 
enhancement, and preservation will be ecologically successful and 
offset those permitted impacts. The decision document for this NWP 
contains a general discussion of the functions provided by streams, as 
well as general

[[Page 10208]]

citations supporting our position that stream rehabilitation and 
enhancement can provide stream functions to offset functions lost as a 
result of permitted activities. It is not necessary for the decision 
document to provide a comprehensive analysis of the state of stream 
restoration success. The approach discussed above, and in 33 CFR part 
332, is consistent with the Council on Environmental Quality's January 
14, 2011, guidance on the ``Appropriate Use of Mitigation and 
Monitoring and Clarifying the Appropriate Use of Mitigated Findings of 
No Significant Impact.'' That guidance advocates the use of adaptive 
management to take corrective actions if the required mitigation fails 
to achieve projected environmental outcomes, which is also required by 
the Corps compensatory mitigation regulations in 33 CFR part 332.
    One commenter said that the Corps has failed to analyze whether 
surface coal mining activities authorized by NWP 21 will cause 
significant degradation to ``special aquatic sites,'' such as riffle 
and pool complexes. This commenter asserted that valley fills and 
mining through streams frequently buries riffle and pool complexes, and 
these special aquatic sites are protected by stringent restrictions on 
discharges of fill material into such sites. The commenter also stated 
that practicable alternatives that do not involve burying riffles and 
pools are presumed to be available unless clearly demonstrated 
otherwise and such alternatives are presumed to have less adverse 
impacts on the aquatic ecosystem. This commenter said the Corps should 
deny a permit if it lacks sufficient information to determine whether 
the proposed discharge complies with the Guidelines.
    The activities authorized by this NWP comply with the 404(b)(1) 
Guidelines, even though it authorizes discharges of dredged or fill 
material into waters of the United States that may be classified as 
special aquatic sites such as riffle and pool complexes. Each activity 
authorized by an NWP does not require a project-specific 404(b)(1) 
Guidelines analysis--that analysis is done before the NWP or any other 
type of general permit is issued (see 40 CFR 230.7). The 404(b)(1) 
Guidelines do not prohibit the use of general permits to authorize 
discharges of dredged or fill material into special aquatic sites. A 
determination of significant degradation does not focus simply on the 
loss of a special aquatic site caused by the discharge of dredged or 
fill material. It requires a broader analysis. The process for 
determining whether significant degradation occurs consists of applying 
the provisions of the 404(b)(1) Guidelines holistically, and assessing 
the effects of the proposed discharge of pollutants on human health and 
welfare; aquatic life and wildlife; aquatic ecosystem diversity, 
productivity, and stability; and recreational, aesthetic, and economic 
values. For activities authorized by general permits, the evaluation of 
alternatives in accordance with 40 CFR 230.10(a) does not directly 
apply (see 40 CFR 230.7(b)(1)). Paragraph (a) of general condition 23, 
mitigation, requires project proponents to design and construct NWP 
activities to avoid and minimize adverse effects to the aquatic 
environment to the maximum extent practicable on the project site.
    Several commenters stated that surface coal mines are already 
heavily regulated under SMCRA, which includes a variety of requirements 
to protect waters of the United States, so additional requirements are 
not needed to ensure that adverse effects to the aquatic environment 
are minimal. Two of these commenters stated NWP 21 should be reissued 
without change because of SMCRA requirements. One commenter said the 
authority to authorize stream and wetland impacts caused by mining 
activities should rest solely with the SMCRA regulatory authority.
    There is often more than one Federal law that regulates surface 
coal mining activities, especially in cases where those activities 
involve discharges of dredged or fill material into waters of the 
United States. While most aspects of surface coal mining are regulated 
under SMCRA, surface coal mining and reclamation activities involving 
discharges of dredged or fill material into waters of the United States 
also require permits issued under Section 404 of the Clean Water Act. 
The statutory and regulatory standards established under SMCRA are 
different than those established under Section 404 of the Clean Water 
Act, including section 404(e) which authorizes the Corps to issue 
general permits. One of the objectives of SMCRA is to ensure that 
surface coal mining activities are conducted in an environmentally 
responsible manner and that the land disturbed by mining is adequately 
reclaimed. One of the objectives of the Clean Water Act is to ``restore 
and maintain the physical, chemical, and biological integrity of the 
Nation's waters.'' Under the regulations implementing SMCRA, surface 
coal mining and reclamation activities must be conducted in a manner 
that will ``minimize the disturbance of the hydrologic balance within 
the permit and adjacent areas'' and that will ``prevent material damage 
to the hydrologic balance outside the permit area.'' As part of the 
SMCRA permitting process, potential changes to the quality and quantity 
of surface and groundwater are evaluated to ensure that material damage 
to the hydrologic balance outside the permit area will not occur. Other 
factors considered under SMCRA include: pre- and post-mining land uses, 
backfilling and grading activities, disposal of excess spoil, and the 
protection or replacement of water supplies.
    Under Section 404 of the Clean Water Act, the 404(b)(1) Guidelines 
provide the substantive criteria for evaluating the environmental 
effects of proposed discharges of dredged or fill material into waters 
of the United States. The 404(b)(1) Guidelines are not focused on 
considering effects to water quality and quantity. The 404(b)(1) 
Guidelines also require examination of the effects that discharges of 
dredged or fill material will have on physical, chemical, and 
biological attributes of waters of the United States. The 404(b)(1) 
Guidelines at 40 CFR part 230 require the Corps to evaluate the effects 
of discharges of dredged or fill material, including general permits 
that authorize such discharges, on the applicable criteria listed in 
subparts C through F. Examples of criteria in those subparts are: 
Substrate; suspended particulates/turbidity; water; current patterns 
and water circulation; normal water fluctuations; threatened and 
endangered species; fish, crustaceans, mollusks, and other aquatic 
organisms in the food web; other wildlife; wetlands; riffle and pool 
complexes; municipal and private water supplies; recreational and 
commercial fisheries; water-related recreation; and aesthetics. The 
threshold for issuance of general permits such as NWP 21 is a 
determination that the authorized activities would result in no more 
than minimal individual or cumulative adverse environmental effects.
    There is no corresponding threshold under SMCRA and its 
implementing regulations, which do not require that permit applications 
be evaluated in terms of the 404(b)(1) Guidelines. Instead, section 
507(b)(11) of SMCRA requires that the permit applicant prepare a 
determination of the probable hydrologic consequences of the proposed 
operation with respect to the hydrologic regime and the quantity and 
quality of water in surface and ground water systems. Section 510(b)(3) 
of SMCRA requires that the regulatory authority use this determination 
and other available information to prepare an assessment of the 
probable

[[Page 10209]]

cumulative impact of all anticipated mining in the area on the 
hydrologic balance. The SMCRA regulatory authority may not issue a 
permit unless it first finds that the operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area. While there is some overlap, the thresholds for permit issuance 
under SMCRA are not the same as the thresholds under Section 404 of the 
Clean Water Act. Given the different permit issuance thresholds of 
SMCRA and Section 404 of the Clean Water Act, NWP 21 authorizations 
cannot only rely on the environmental reviews conducted under SMCRA to 
satisfy the minimal effects requirement.
    Section 404 of the Clean Water Act applies to all discharges of 
dredged or fill material into waters of the United States, unless those 
activities qualify for an exemption under Section 404(f) of the Clean 
Water Act. Section 404(f) does not specifically exempt surface coal 
mining activities. For those activities that do not qualify for an 
exemption from the permit requirements of the CWA, the Corps must 
evaluate applications for Department of the Army permits, including 
general permits, and either apply the 404(b)(1) Guidelines (if an 
individual permit is required) or determine whether the proposed 
activity qualifies for NWP authorization. This NWP provides an 
efficient means of authorizing discharges of dredged or fill material 
into waters of the United States that result in minimal individual and 
cumulative adverse effects on the aquatic environment. Corps districts 
work with SMCRA regulatory authorities to reduce duplication, but each 
agency must still ensure that proposed activities comply with their 
respective statutes and implementing regulations.
    Two commenters stated the primary effect of adopting any of the 
three options proposed for NWP 21 in the February 16, 2011, Federal 
Register notice would be to require proposed surface coal mining 
activities involving discharges of dredged or fill material into waters 
of the United States to be evaluated under the individual permit 
process. This would cause an unnecessary additional delay and expense 
to mine operators and require the Corps to get additional personnel and 
funding to process additional individual permit applications in a 
timely manner. One commenter suggested that NWP 21 should be reissued 
as it was in 2007, and that regional conditions should be used in 
Appalachia to ensure those activities result in minimal adverse effects 
on the aquatic environment. This commenter said this approach would 
allow western coal producers to continue their operations without 
negative consequences.
    We acknowledge that reissuing NWP 21 with a \1/2\-acre limit, a 300 
linear foot limit for the loss of stream bed, and not authorizing 
discharges of dredged or fill material into waters of the United States 
to construct valley fills, will result in more surface coal mining 
activities requiring Clean Water Act Section 404 individual permits. To 
provide an equitable and less burdensome transition to the new limits 
to NWP 21, under paragraph (a) NWP 21 continues to authorize surface 
coal mining activities that were previously authorized under the 2007 
NWP 21 without those new limits. Under paragraph (b), the \1/2\-acre 
and 300 linear foot limits, as well as the prohibition against 
authorizing discharges of dredged or fill material into waters of the 
United States to construct valley fills, apply to surface coal mining 
activities that were not authorized by the 2007 NWP 21. Expansions of 
activities that were previously verified under the 2007 NWP 21 do not 
qualify for paragraph (a) of NWP 21.
    Continuing to authorize surface coal mining activities that were 
verified under the 2007 NWP 21 will reduce burdens on the regulated 
public while protecting the aquatic environment in accordance with the 
requirements of Section 404(e) of the Clean Water Act. These project 
proponents who received verifications under the 2007 NWP 21 expended 
substantial resources to obtain their authorizations. If they cannot 
comply with the new limits imposed on NWP 21 it would impose a 
significant hardship to require those operators to cease surface coal 
mining activities in waters of the United States while they apply for 
individual permits and wait for a decision. We estimate that there are 
approximately 70 surface coal mining activities across the country that 
were authorized by the 2007 NWP 21 that may qualify for authorization 
under paragraph (a) of NWP 21 when it goes into effect on March 19, 
2012. To obtain authorization under paragraph (a) of the 2012 NWP 21, 
these project proponents do not need to submit a pre-construction 
notification since they already did so under the 2007 NWP 21 and that 
notification will be on file at the district office. Instead, those 
project proponents only need submit a letter to the district engineer 
requesting verification under the 2012 NWP 21. That letter should be 
sent to the district engineer by February 1, 2013, although that 
deadline may be extended in writing by the district engineer. This date 
allows the district engineer approximately 45 days for review of the 
letter before the expiration of the one-year period that is allowed for 
completion of activities authorized under the 2007 NWP 21. Any changes 
to the previously authorized surface coal mining activity must also be 
described in that letter, so that the district engineer can determine 
whether the activity still results in minimal individual and cumulative 
adverse effects on the aquatic environment and is eligible for 
authorization under paragraph (a) of NWP 21. The district engineer will 
review such requests and notify the permittee whether the activity is 
authorized by the 2012 NWP 21. There will be no agency coordination of 
these previously authorized NWP 21 activities. Any currently applicable 
regional conditions and any activity-specific conditions, such as 
compensatory mitigation requirements, would apply to the NWP 
authorization. The district engineer may also revise such conditions 
and requirements if the existing ones are determined not to be adequate 
to ensure minimal adverse effects. If the permittee does not receive a 
written verification from the district engineer prior to the expiration 
of the one-year period provided in 33 CFR 330.6(b), the permittee must 
cease all activities until such verification is received because that 
one-year period cannot be extended. The surface coal mine activity must 
be authorized under the 2012 NWP 21 or another form of Department of 
the Army authorization to discharge dredged or fill material into 
waters of the United States after the one-year period ends on March 18, 
2013. The district engineer may also extend the February 1, 2013, 
deadline by notifying the permittee in writing, if he or she needs less 
than 45 days to make a decision on the 2012 NWP 21 authorization. The 
Corps encourages operators who received a 2007 NWP 21 verification and 
plan to operate past March 18, 2013, to submit their letter as soon as 
possible to allow for uninterrupted NWP 21 permit coverage. Expansions 
of previously verified NWP 21 activities that result in greater losses 
of waters of the United States are not authorized under paragraph (a) 
will require a different form of Department of the Army authorization 
if they do not qualify for authorization under paragraph (b) of NWP 21. 
If the surface coal mining activity involving discharges of dredged or 
fill material into waters of the United States authorized under 
paragraph (a) cannot be completed by the time the 2012 NWP 21 expires, 
then the project proponent

[[Page 10210]]

will have to obtain an individual permit or regional general permit, if 
the activity does not qualify for an applicable NWP issued in 2017. The 
Corps recommends that any projects that will extend beyond March 18, 
2017, that do not meet the new limits in NWP 21 apply for an individual 
permit and allow sufficient time for the Corps to process their 
application to allow uninterrupted coverage when the new NWP 21 expires 
in 2017.
    The limits added to paragraph (b) of NWP 21 will ensure that this 
NWP authorizes only those activities that have minimal adverse effects 
on the aquatic environment, individually and cumulatively. These limits 
will also result in more new projects needing to obtain individual 
permits. The Corps has the resources necessary to process those 
individual permit applications in a timely manner. It is important for 
coal mine operators to consider the advantages of obtaining individual 
permits for surface coal mining activities. In accordance with Section 
404(e) of the Clean Water Act, general permits, including NWPs, can be 
issued for a period of no more than five years. Individual permits can 
be issued for longer periods of time--the expiration date for an 
individual permit is at the discretion of the district engineer, who 
will take into account the characteristics of the proposed activity and 
the amount of time expected to be needed to complete the regulated 
activities. Therefore, it would often be advantageous for a surface 
coal mine operator to obtain an individual permit that would authorize 
discharges of dredged or fill material into waters of the United States 
for the expected operational timeframe for that particular coal mine. 
Under NWP 21, no authorization could be issued for a time period of 
more than five years. If the NWP 21 activity is not completed by the 
expiration date of the NWP authorization then the project proponent 
would have to notify the district engineer and obtain another NWP 
verification.
    Nationwide permit NWP 21 pre-construction notifications require 
substantial resources to evaluate proposed activities and determine 
whether they result in minimal individual and cumulative adverse 
effects on the aquatic environment, and whether compensatory mitigation 
is needed to comply with the minimal adverse environmental effects 
requirement for general permits. Under the 2007 NWP 21, the project 
proponent could not proceed until he or she obtained an NWP 21 
verification. The substantial amount of review required for both NWP 21 
pre-construction notifications and individual permit applications both 
involve considerable amounts of resources from the Corps, so we do not 
expect a significant increase in workload or processing times to occur 
through the implementation of Option 2 and the modifications we made to 
that option for the final NWP.
    In response to the NWP 21 proposal, one commenter said the Corps 
was attempting to decide on behalf of the United States government how 
much coal mining should take place, or what scale of mining operations 
is appropriate. The commenter suggested that the Corps only concern 
should be the scale of the regulated activity and not the scale of the 
mining operation. The commenter stated that the Corps evaluation of 
surface coal mining activities should be focused on impacts to aquatic 
resources. One commenter said the proposed changes to NWP 21 would have 
a significant effect on energy supply, since the ability to obtain 
permits in a timely manner is essential to the production of coal, 
which provides over 30 percent of America's electric power.
    The three options provided in the February 16, 2011, Federal 
Register notice were intended to solicit comment to assist the Corps in 
identifying an option for the reissuance of NWP 21 that would comply 
with the statutory and regulatory requirements for general permits. 
Those options were developed to determine which terms and conditions 
(if any) should be established to ensure that NWP 21 authorizes only 
those activities that result in minimal adverse effects on the aquatic 
environment. The proposal does not affect how much coal mining may take 
place, nor does it have a significant effect on energy supply, because 
those surface coal mining activities that do not qualify for NWP 21 
authorization may be authorized by individual permits or general 
permits, if such general permits are available. The Corps review is 
focused on adverse effects to aquatic resources, as well as other 
public interest review factors. The limits on the use of NWP 21 are 
expressed in terms of impacts to the aquatic environment, not the scale 
of the mining operation. Other aspects of surface coal mining 
activities are regulated by OSMRE or delegated states under SMCRA.
    One commenter said that NWP 21 should not apply to ephemeral waters 
because they are not jurisdictional waters of the United States. 
Several commenters stated that NWP 21 encourages operators to design 
their projects within the scope of the NWP rather than seek an 
individual permit, thereby reducing impacts. These commenters said that 
there may be a net gain of wetland acreages because of reclamation 
practices at surface coal mines.
    Ephemeral streams are waters of the United States if they meet the 
definition of ``waters of the United States'' at 33 CFR part 328 and 
applicable guidance on Clean Water Act jurisdiction, such as the 
guidance issued in 2008 entitled ``Clean Water Act Jurisdiction 
Following the U.S. Supreme Court's Decision in Rapanos v. United States 
and Carabell v. United States.'' The NWP 21 issued in 2007 did not have 
any acreage or linear foot limits, which are the primary tools used to 
encourage avoidance and minimization to qualify for NWP authorization. 
Except for those previously verified 2007 NWP 21 activities authorized 
under paragraph (a), the NWP 21 reissued today has a \1/2\-acre limit 
and a 300-linear foot limit for losses of stream bed, which will be 
more effective in encouraging project proponents to avoid and minimize 
losses of waters of the United States to quality for NWP 21 
authorization. We acknowledge that there may be net gains in wetland 
acreage at some surface coal mining reclamation sites, but we have 
imposed limits on NWP 21 because of concerns about losses of stream bed 
and the potential for surface coal mining activities to have more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    One commenter disagreed with the Corps assertion that valley fills 
substantially alter watersheds and result in adverse impacts on the 
aquatic environment. This commenter also said that Options 2 and 3 do 
not allow the Corps the flexibility to increase the amount of stream 
bed loss above the 300 linear foot limit. The commenter also objected 
to the proposed interagency coordination for activities resulting in a 
loss of greater than 1,000 linear feet of intermittent and ephemeral 
stream beds, and said the Corps has not suggested any reasons for this 
restrictive provision.
    Surface coal mining activities involving the construction of valley 
fills result in substantial changes to the watersheds of the headwater 
streams that are primarily impacted by these activities. Those 
watersheds are changed by the large amounts of land clearing and 
earthmoving that occur during the mining activity. The construction of 
the valley fill itself causes changes to the geomorphology of the 
watershed, which affects water quality and watershed hydrologic

[[Page 10211]]

functions, such as water collection, transport, and storage. It is well 
documented in the scientific literature that changes in land use affect 
the quantity and quality of streams, wetlands, and other aquatic 
resources. Examples of such scientific studies are cited in the 
decision document for this NWP. The 300 linear foot limit for losses of 
stream bed is generally necessary to ensure that NWP 21 authorizes only 
those activities that result in minimal adverse effects on the aquatic 
environment. However, that 300 linear foot limit may be waived by the 
district engineer if the proposed activity involves filling or 
excavating intermittent or ephemeral stream beds and the district 
engineer determines, in writing, that that activity will result in 
minimal individual and cumulative adverse effects on the aquatic 
environment. Agency coordination for proposed losses of greater than 
300 linear feet of intermittent or ephemeral stream bed is intended to 
provide information that will assist the district engineer in making 
his or her minimal adverse effects determination.
    One commenter said all Corps divisions and districts should add 
regional modification alternatives to address differences in aquatic 
resources functions. This commenter also stated that the proposal 
provides that the cumulative impact analysis for an NWP 21 is not 
limited to assessing impacts of the use of the NWP 21 on a national 
basis and is not limited to activities authorized by NWPs or other 
Department of Army permits. The commenter acknowledged that the Corps 
considers activities not regulated by the Corps, including private 
actions and those resulting in changes in the use of uplands next to or 
near wetlands, streams, or other aquatic resources during the 
cumulative effects analysis.
    It is at the division engineer's discretion whether to add regional 
conditions to an NWP to ensure that the NWP authorizes only those 
activities that have minimal individual and cumulative adverse effects 
on the aquatic environment. In addition, district engineers may modify 
NWP authorizations by adding activity-specific conditions to minimize 
adverse environmental effects. The decision documents comply with the 
two relevant approaches for conducting cumulative effects analyses: (1) 
The approach provided in the Council on Environmental Quality's 
definition of ``cumulative impact'' provided in their National 
Environmental Policy Act regulations at 40 CFR 1508.7, and (2) the 
approach indicated in the 404(b)(1) Guidelines at 40 CFR 230.7(b).
    One commenter said the proposed changes to NWP 21 will actually 
increase impacts because mining operators will need to increase the 
size of their mining sites to make the individual permit process cost 
effective. The commenter said operators will no longer be able to 
afford to mine the smaller reserve areas, so larger mine areas would 
need to be permitted.
    The changes to NWP 21 are appropriate to help ensure that this NWP 
complies with the statutory requirements for general permits, in that 
it may only authorize activities that have minimal individual and 
cumulative adverse environmental effects. Surface coal mining 
activities involving discharges of dredged or fill material into waters 
of the United States that do not qualify for NWP authorization will be 
evaluated as individual permits if applicable regional general permits 
are not available. Activities authorized by individual permits must 
comply with the 404(b)(1) Guidelines and undergo an alternatives 
analysis. A public interest review will also be conducted during the 
individual permit review process. Mining companies will have to make 
their own decisions on whether it is economically viable to mine 
smaller reserve areas, and apply for Department of the Army 
authorization if proposed activities involve discharges of dredged or 
fill material into waters of the United States.
    One commenter said that if Option 2 is adopted, it should include a 
definition of valley fill. A commenter stated that the utility of NWP 
21 would be substantially reduced because losses of waters of the 
United States caused by the construction of attendant features such as 
ponds and roads would be counted towards the \1/2\-acre and 300 linear 
foot limits. Another commenter indicated that the \1/2\-acre limit 
would only authorize small sediment ponds. This commenter stated that 
small sediment ponds would not be able to effectively service a typical 
mine site. One commenter requested clarification on whether the amount 
of stream that is impounded for sediment ponds will be counted as a 
loss of waters of the United States and whether these ponds will have 
to be removed upon completion of the mining.
    We have added a definition of the term ``valley fill'' to the text 
of this NWP. While fewer surface coal mining activities involving 
discharges of dredged or fill material into waters of the United States 
would be authorized by NWP 21 when compared to previous issued versions 
of this NWP, the new terms and conditions of this NWP, including the 
\1/2\-acre and 300 linear foot limits, are necessary to ensure that 
this NWP authorizes only those activities that have minimal individual 
and cumulative adverse effects on the aquatic environment. If the 
construction of larger sediment ponds does not qualify for NWP 21 
authorization, activities may be authorized by individual permits or 
applicable regional general permits. In the definition of ``loss of 
waters of the United States'' the loss of stream bed is determined by 
the amount of linear feet of stream bed that is filled or excavated. As 
to whether sediment ponds would have to be removed upon completion of 
the mining operation, that would be a case-specific determination made 
by the district engineer after taking into account requirements of the 
SMCRA authority.
    One commenter asked how many surface coal mining activities may be 
authorized each year with NWP 21 if Option 2 is selected. One commenter 
said the proposed changes to NWP 21 would be costly to small businesses 
and disagreed with the Corps statement that the revised NWPs will not 
impose substantially higher costs on small entities than those of 
existing permits. Another commenter indicated that the proposed changes 
to NWP 21 would result in more environmental impact statements being 
required because of the amount of wetlands in their area.
    In section 6.2.2 of the decision document for this NWP, we provide 
estimates of the number of times we predict NWP 21 will be used each 
year. Under paragraph (b), we estimate that NWP 21 will be used 
approximately 11 times per year, although more activities may qualify 
for NWP 21 authorization if project proponents do additional avoidance 
and minimization to reduce losses of waters of the United States to 
satisfy the acreage and linear foot limits. As discussed above, we 
estimate that, across the country, approximately 70 NWP 21 activities 
verified under the 2007 NWP 21 might be re-verified under paragraph (a) 
of the 2012 NWP 21. The estimate provided in the decision document was 
based on an analysis of past use of NWP 21, and it is a rough estimate 
because NWP 21 did not have an acreage or linear foot limit and we 
cannot predict how many activities can be modified to comply with the 
new limits. Therefore, it is difficult to accurately predict how often 
project proponents will qualify for authorization under the NWP 21 
issued today. Since fewer surface coal mining activities are likely to 
qualify for NWP 21 authorization, and more will require individual 
permits, we acknowledge

[[Page 10212]]

that there will be greater compliance costs for small businesses. In 
the preamble to the proposal, where we discuss compliance with the 
Regulatory Flexibility Act, we state that the proposed NWPs would not 
result in a significant impact on a substantial number of small 
entities. That statement was made in the context of considering all of 
the 48 NWPs proposed to be reissued and the two proposed new NWPs. Some 
NWPs, such as NWP 48, will require fewer pre-construction notifications 
and other requirements on small entities while other NWPs, such as NWP 
21, will have more stringent requirements to satisfy the minimal 
adverse environmental effects standard and will authorize fewer 
activities. We do not agree that these changes to NWP 21 will result in 
significantly more environmental impact statements. The threshold for 
NWP authorization, as well as for other general permits, is minimal 
adverse environmental effects. The threshold for preparing an 
environmental impact statement is that the activity constitutes a major 
Federal action significantly affecting the quality of the human 
environment. Since the threshold that triggers the requirement to 
prepare an environmental impact statement is greater than the minimal 
adverse environmental effects threshold for NWP activities, activities 
that were previously authorized by NWP should generally not require an 
environmental impact statement if they are instead evaluated through 
the individual permit process. Environmental assessments should suffice 
to provide National Environmental Policy Act compliance for most, if 
not all, of those activities. If the adverse effects on the aquatic 
environment for a proposed NWP activity are determined by the district 
engineer to be more than minimal individually and cumulatively, then 
discretionary authority should be exercised and the proposed activity 
evaluated through the individual permit process.
    Many commenters said that that it would be more appropriate to 
establish different NWP terms and conditions for different areas of the 
United States, because of vast differences in geological, 
topographical, climatologically and ecological regimes in areas where 
coal resources are located across the country. One of these commenters 
recommended focusing on the use of regional conditions to address 
regional differences in coal mining techniques and issues, instead of 
modifying NWP 21.
    An NWP is developed to authorize specific categories of activities 
across the country that have minimal individual and cumulative adverse 
effects on the aquatic environment and is issued by Corps Headquarters. 
There must be a national decision document for each NWP, and to issue 
that NWP, there must be a finding that the NWP will authorize only 
those activities that have minimal individual and cumulative adverse 
effects on the aquatic environment. Division and districts prepare 
supplemental decision documents to explain whether regional conditions 
are needed to satisfy the minimal adverse effects requirement. Regional 
conditions are added to an NWP at a division engineer's discretion and 
Corps Headquarters cannot mandate the adoption of regional conditions.
    The national decision documents acknowledge that regional 
conditions approved by division engineers and activity-specific 
conditions added to NWP authorizations are procedures to be relied upon 
to satisfy the minimal adverse environmental effects requirement. In 
those areas of the country where surface coal mining activities result 
in minimal individual and cumulative adverse effects on the aquatic 
environment but exceed the limits of NWP 21, division and district 
engineers may issue regional general permits that have different terms 
and conditions than NWP 21, including larger acreage or linear foot 
limits. Those regional general permits are a more appropriate mechanism 
for considering local geologic, topographic, climatologic, and 
ecological characteristics.
    Some commenters stated that Executive Order 13563, ``Improving 
Regulation and Regulatory Review'' asks federal agencies to tailor 
regulations to impose the least burden on society, including 
individuals, businesses of differing sizes, and other entities. These 
commenters said that adding additional redundant review by Federal 
agencies violates this Executive Order and threatens energy supplies. 
One of these commenters said the proposal to reissue NWP 21 with 
modifications is contrary to the objectives of Executive Order 13563 
because it fails to use the best, most innovative and least burdensome 
tools for achieving regulatory ends and that the proposed limits in NWP 
21 are redundant, inconsistent, or overlapping with other regulations.
    As explicitly recognized in Executive Order 13563 itself, an 
Executive Order does not supersede Federal laws, such as the 
requirements in the Clean Water Act, the Rivers and Harbors Act of 
1899, the Endangered Species Act, and the National Historic 
Preservation Act. Section 404(e) of the Clean Water Act states that 
general permits (including NWPs) authorize categories of activities 
that are similar in nature and result only in minimal individual and 
cumulative adverse environmental effects. The Corps complied with 
Section 2 of Executive Order 13563 by seeking public comment on the 
proposal to reissue NWP 21 with modifications, for a 60-day comment 
period. The Corps has determined that the changes to NWP 21 are 
necessary to comply with the requirements of Section 404(e) of the 
Clean Water Act. We have modified Option 2 by authorizing activities 
verified under the 2007 NWP 21 (see paragraph (a) of NWP 21), to 
provide an equitable transition to the new limits in NWP 21 and reduce 
burdens on the regulated public. The authority for the district 
engineer to waive the linear foot limit for losses of intermittent and 
ephemeral streams if the impacts are not more than minimal is also 
intended to minimize regulatory burden. As discussed earlier in this 
section, the terms and conditions of NWP 21 are not duplicative with 
the requirements of other Federal agencies. While surface coal mining 
activities are more broadly regulated under the Surface Mining Control 
and Reclamation Act by the Office of Surface Mining Reclamation and 
Enforcement or approved states, the Corps regulates discharges of 
dredged or fill material into waters of the United States, and focuses 
its evaluation on the effects those discharges have on the aquatic 
environment or its other public interest review factors (see 33 CFR 
330.1(d) and (e)(2)). Those activities that do not qualify for NWP 
authorization may be authorized by other forms of Department of the 
Army authorization, such as individual permits or regional general 
permits. The standards the Corps uses to ensure compliance with the 
Clean Water Act differ from the standards used by the Office of Surface 
Mining Reclamation and Enforcement or approved states to ensure 
compliance with the Surface Mining Control and Reclamation Act, and 
those standards are not redundant.
    A commenter disagreed with the Corps statement that the proposed 
NWPs are not a significant energy action as defined by Executive Order 
13211 because of the proposed changes to NWP 21. The commenter said the 
Corps must prepare a Statement of Energy Effects as required by the 
Executive Order, including a description of the adverse impacts 
expected to the production of coal, the nation's primary electrical 
generation fuel supply. One commenter said that the time frames for 
evaluating NWP 21 pre-construction notifications should be similar to 
those

[[Page 10213]]

of other NWPS, and NWP 21 should not require the project proponent to 
wait until he or she receives a written NWP verification even if the 
45-day review period has passed.
    The changes to NWP 21 are appropriate and help to ensure that the 
NWP authorizes only those discharges of dredged or fill materials into 
waters of the United States that have minimal adverse effects on the 
aquatic environment, individually and cumulatively. Surface coal mining 
activities that involve discharges of dredged or fill material into 
waters of the United States that do not qualify for NWP authorization 
may be authorized by individual permits or, if available, applicable 
regional general permits, which would still support the production of 
coal to supply the nation's energy needs. Given the adverse 
environmental effects associated with surface coal mining activities 
involving discharges of dredged or fill material into waters of the 
United States, which are discussed in the decision document for this 
NWP, we believe it is necessary to retain the existing requirement that 
the project proponent may not proceed with the NWP 21 activity until 
after he or she has obtained a written NWP 21 verification. Project 
proponents are already accustomed to complying with this requirement 
and plan accordingly.
    One commenter suggested establishing a grandfathering period for 
surface coal mining activities authorized by the NWP 21 issued in 2007, 
to allow permittees to complete their currently approved mitigation 
plans without an added burden of updating permits. Another commenter 
asked how project proponents are expected to transition from the 
current 2007 NWP 21 to one of the selected options for reissuing NWP 
21, if NWP 21 is reissued under either Option 2 or 3.
    As discussed above, we have revised NWP 21 to continue the NWP 
authorization for surface coal mining activities that were verified 
under the 2007 NWP 21, to provide project proponents until March 18, 
2017, to complete those activities under NWP 21. The acreage limits, 
linear foot limits, and prohibition against discharges of dredged or 
fill material into waters of the United States to construct valley 
fills apply to those surface coal mining activities that were not 
previously authorized by the 2007 NWP 21. We believe this approach for 
transitioning to the new NWP 21 limits provides both protection to the 
aquatic environment and is equitable to those members of the regulated 
public who made substantial investments in reliance on a previously 
verified NWP 21 authorization.
    One commenter said that a pre-construction notification should be 
required for all NWP 21 activities, so plans and permit conditions 
could be reviewed to ensure that contaminated water being generated 
during these activities is not later reaching open water and impacting 
state-owned lands. One commenter expressed concern that historic 
resources impacts are not considered under SMCRA in cases where the 
program has been delegated to states.
    To be authorized by this NWP, the project proponent must submit a 
pre-construction notification, so that the district engineer can 
evaluate the proposed activity and ensure that it qualifies for NWP 
authorization. Activities authorized by this NWP must comply with 
general condition 20, historic properties. If the proposed activity has 
the potential to cause effects to historic properties, consultation 
under Section 106 of the National Historic Preservation Act will be 
conducted before the district engineer determines whether the activity 
is authorized by NWP.
    This NWP is reissued with the modifications discussed above.
    NWP 22. Removal of Vessels. There were no changes proposed for this 
NWP, and no comments were received. This NWP is reissued without 
change.
    NWP 23. Approved Categorical Exclusions. There were no changes 
proposed for this NWP. One commenter requested that this NWP be limited 
to federal applicants only. One commenter requested that the NWP be 
modified to allow any agency with categorical exclusions to use this 
NWP, not just those that have been approved by the Office of the Chief 
of Engineers. One commenter recommended adding references to 
requirements to comply with other applicable federal laws, such as 
Section 106 of the National Historic Preservation Act. One commenter 
stated that this NWP does not take into consideration the actions that 
may impact Tribal treaty cultural or natural resources and requested 
that notification be provided to affected tribes regardless if 
considered a categorical exclusion.
    This NWP applies only to those activities ``undertaken, assisted, 
authorized, regulated, funded or financed, in whole or in part, by 
another Federal agency or department.'' In certain instances, another 
agency, such as a state department of transportation, may legally 
assume the responsibility for categorical exclusion determinations for 
a Federal entity. To ensure compliance with the requirements for 
general permits, it is necessary for the Office of the Chief of 
Engineers to review and approve agency categorical exclusions for use 
with this NWP. In cases where the Federal agency is responsible for 
compliance with the National Historic Preservation Act, the Endangered 
Species Act, or other Federal laws, the Corps can accept their 
compliance, as long as it adequately covers the activity authorized by 
the NWP. The same principle applies for Tribal treaty natural or 
cultural resources: If the agency issuing the categorical exclusion 
that qualifies for NWP 23 authorization has sufficiently addressed the 
Tribal treaty resources, then the Corps district can accept that as a 
basis for compliance with general condition 17, tribal rights.
    One commenter stated that this NWP authorizes activities that are 
not similar in nature, and its use does not result in minimal adverse 
effects on the aquatic environment. One commenter said that the 
approved categorical exclusions need to be reassessed to ensure that 
they still meet the minimal adverse environmental effects requirement 
for general permit activities. One commenter said that pre-construction 
notification should be required for all NWP 23 activities to ensure 
adequate interagency coordination. Another commenter said that 
reporting to the Corps should be required for any activity that affects 
wetlands, encroaches on a regulatory floodway, affects the water level 
of a 100-year flood event, or affects waters designated as critical 
resource waters.
    This NWP, along with the Regulatory Guidance Letter listing the 
approved categorical exclusions, authorizes activities that are similar 
in nature. The Corps believes that their eligibility for NEPA 
compliance using a categorical exclusion is an appropriate basis of 
``similarity'' for their authorization under this NWP. Based on the 
NEPA requirements for use of categorical exclusions, the Corps has 
determined that these activities will result in minimal individual and 
cumulative adverse effects on the aquatic environment, and division 
engineers have the authority to regionally condition this NWP to 
restrict or prohibit its use if they determine that these activities 
are resulting in more than minimal adverse environmental effects. We do 
not agree that the approved categorical exclusions need to be re-
evaluated because of the length of time that has passed since they were 
originally approved. Agencies have an on-going responsibility to review 
their categorical exclusions and ensure that

[[Page 10214]]

the activities they authorize still qualify for this type of NEPA 
compliance. Division engineers may also regionally condition this NWP 
to require agency coordination for specific categorical exclusions that 
have been approved for use with this NWP. We do not agree that 
reporting or pre-construction notification should be required for all 
activities that may affect wetlands. Activities that encroach upon 
regulatory floodways or affect 100-year flood elevations are more 
appropriately addressed through applicable Federal Emergency Management 
Agency-approved state or local floodplain management requirements (see 
general condition 10). General condition 22, designated critical 
resource waters, requires pre-construction notification for any NWP 23 
activity that is proposed in designated critical resource waters and 
wetlands adjacent to those waters.
    The proposed NWP is reissued with no changes.
    NWP 24. Indian Tribe or State Administered Section 404 Programs. 
There were no changes proposed for this NWP, and no comments were 
received. This NWP is reissued without change.
    NWP 25. Structural Discharges. We did not propose any changes to 
this NWP. One commenter stated that concrete should be cured for a full 
seven days before coming in contact with water. One commenter stated 
structures constructed by such discharges on state-owned lands may 
require a ``use authorization'' from the state.
    Specific requirements for the curing of concrete are more 
appropriately addressed as regional conditions or activity-specific 
conditions added to an NWP 25 authorization. Project proponents are 
responsible for obtaining any other federal, state, or local permits 
that may be required for a particular activity.
    The NWP is reissued without change.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. We proposed to modify this NWP by adding ``the removal of 
small dams'' to the list of examples of activities authorized by this 
NWP. We also proposed to remove the phrase ``that has not been 
abandoned'' that modifies the term ``prior converted cropland.'' We 
proposed to change ``Notification'' provisions (1) and (2) so that 
certain stream restoration, rehabilitation, and enhancement activities 
would be subject to the reporting provision instead of requiring pre-
construction notification. Lastly, we proposed to modify 
``Notification'' provision (1) by adding the U.S. Forest Service to the 
list of Federal agencies that can develop stream or wetland 
enhancement, restoration, or establishment agreements.
    Many commenters supported the addition of removal of small dams to 
the list of examples of activities authorized by this NWP. One 
commenter said that if this NWP is modified to authorize the removal of 
small dams, the NWP should also authorize discharges of dredged or fill 
material to re-establish appropriate stream channel configurations, 
with a \1/2\-acre limit for the stream channel reconfiguration. Some of 
these commenters requested clarification as to what constitutes a 
``small dam.'' One commenter agreed with the addition of removing small 
dams but expressed concern regarding potential impacts to water quality 
when a small dam is removed. One commenter recommended requiring 
sediment testing before authorizing the removal of small dams.
    After further consideration, we have determined that since the NWP 
27 issued in 2007 authorized the installation, removal, and maintenance 
of small water control structures (which clearly includes small dams), 
it is not necessary to modify this NWP by adding the removal of small 
dams to the list of examples of activities authorized by NWP 27, so we 
have not made this proposed change. We agree that the NWP should also 
authorize the restoration of the stream channel that were affected by 
the construction of a small water control structure, if that water 
control structure is to be removed. We do not agree that such 
activities should be limited to \1/2\-acre, since this NWP authorizes 
only aquatic resource restoration, establishment, and enhancement 
activities that result in net increases in aquatic resource functions 
and services. Aquatic resource habitat restoration and enhancement 
activities involving the removal of small water control structures 
should be designed and implemented to prevent or minimize the movement 
of pollutants, including chemical compounds adsorbed to sediments that 
have accumulated in the impoundment, from the impounded area once the 
small water control structure is removed. Sediment testing may be 
required on a case-by-case basis if there are substantive concerns 
about potential contaminants.
    Several commenters suggested that NWP 27 activities be subject to 
strict technical guidelines and enforceable success criteria 
commensurate with the scope of the activity being undertaken. A number 
of commenters expressed concern that some of the activities authorized 
by NWP 27 may result in a loss of waters rather than a net gain. One 
commenter said that aquatic resource restoration, establishment, and 
enhancement activities should have management plans that include goals 
and objectives, baseline conditions, effective monitoring requirements, 
and adaptive management plans. This commenter stated that without this 
level of documentation, the effectiveness of any restoration, 
establishment, or enhancement activity cannot be effectively evaluated 
for success. One commenter recommended adding a requirement for 
performance bonds to ensure that these activities are monitored and are 
achieving their goals and objectives.
    For those NWP 27 activities that require pre-construction 
notification, the prospective permittee is required to submit a 
complete pre-construction notification, with the information listed in 
paragraph (b) of general condition 31. Activities conducted in 
accordance with agreements with other Federal or state agencies should 
be adequately documented to determine whether there will be net 
increases in aquatic resource functions and services. When Corps 
districts review the reports required for activities conducted under 
agency agreements, they will assess whether those activities will 
satisfy the terms and conditions of this NWP. If a particular activity 
does not, then the district will notify the project proponent within 30 
days of when the report was submitted to the district engineer. This 
NWP requires authorized activities to result in net increases in 
aquatic resource functions and services, which will generally add 
acreage to the nation's aquatic habitat base. Although there may be 
some NWP 27 activities that result in a decrease in aquatic resource 
area to increase the functional capacity of those aquatic habitats, 
such changes are acceptable because it is the ecosystem functions, and 
the benefits people derive from those functions, that are important to 
society. To provide better information to assess whether there will be 
a net increase in aquatic resource functions and services, we have 
added a provision to the reporting requirement that requires the 
prospective permittee to provide information on the baseline ecological 
conditions at the project site, such as a delineation of wetlands, 
streams, and/or other aquatic habitats. Unless the activities 
authorized by this NWP are to be used as compensatory mitigation for 
Department of the Army permits (e.g., mitigation banks or in-lieu fee 
projects), the project proponent is not required to submit mitigation 
plans that comply with 33 CFR 332.4. The aquatic resource

[[Page 10215]]

restoration, establishment, or enhancement activity should be 
sufficiently documented to help district engineers decide whether the 
terms and conditions of this NWP are satisfied. Performance bonds or 
other types of financial assurances may be required on a case-by-case 
basis, if such assurances are necessary to provide funding to be used 
for remediation or adaptive management.
    One commenter requested that this NWP authorize the rehabilitation 
or enhancement of tidal streams, stating that such activities would 
result in net increases in the functions and services provided by 
existing tidal aquatic resources and would not be contrary to the 
provision that prohibits the relocation of tidal waters or the 
conversion of tidal waters to other aquatic uses. One commenter pointed 
out that NWP 27 covers a wide range of habitat restoration and 
enhancement activities and there should be greater flexibility to allow 
resource managers to plan for sea level rise. This commenter 
recommended adding the beneficial use of dredged material as a thin 
layer application to provide sediment to sediment starved marshes, 
which may provide substrate to maintain those marshes as local sea 
levels rise. One commenter suggested modifying this NWP by clarifying 
that it authorizes activities that involve removing or modifying 
existing drainage ditches and structures, to establish or re-establish 
wetland or stream hydrology. Another commenter suggested adding the re-
establishment of submerged aquatic vegetation or emergent tidal 
wetlands in areas where those plant communities previously existed. One 
commenter supported the inclusion of mechanized land clearing to remove 
non-native invasive species in this NWP.
    We agree that the rehabilitation or enhancement of tidal streams 
should be authorized by this NWP and have modified the first paragraph 
to include this category of activities. The enhancement of tidal 
wetlands may be accomplished by minor additions of sediment to 
facilitate changes in tidal marsh elevation that may successfully track 
sea level rise. We agree with providing more clarity concerning the 
types of ditch manipulations that can be used for restoring wetland 
hydrology and have removed the phrase ``and drainage ditches'' after 
``the backfilling of artificial channels'' and replaced it with ``such 
as drainage tiles, and the filling, blocking, or reshaping of drainage 
ditches to restore wetland hydrology'' after ``the removal of existing 
drainage structures.'' We also agree that the re-establishment of 
submerged aquatic vegetation or emergent tidal wetlands should be 
authorized by this NWP, as long as those shallow water habitat and 
wetland types previously existed in the project area. Such re-
establishment activities would not constitute a conversion of tidal 
waters to other aquatic uses; instead it would be a form of 
rehabilitation of those habitat types. We have retained the provision 
authorizing mechanized land clearing to remove non-native, invasive 
plant species.
    One commenter requested that the terms ``type'' and ``natural 
wetland'' be defined in the paragraph that describes the activities 
that are not authorized by this NWP. Another commenter supported the 
provision that prohibits the conversion of natural wetlands to another 
aquatic use and recommended that this prohibition also be applied to 
the conversion of one type of aquatic habitat to another. One commenter 
said that the NWP should clearly state that wetlands with documented 
hydrologic alterations are not ``natural'' wetlands and that hydrologic 
restoration of these wetlands is not to be considered a conversion of a 
natural wetland to another ``type'' but instead it should be considered 
as wetland rehabilitation. One commenter stated that a provision should 
be added to this NWP to clarify that compensatory mitigation is not 
required for activities authorized by this NWP since they must result 
in net increases in aquatic resource functions and services.
    As indicated by the parenthetical in the first sentence of the 
referenced paragraph, the term ``type'' as used for the purposes of 
this NWP refers to the general category of aquatic resource, such as 
wetland or stream. We do not believe it would be appropriate to define 
the term ``natural wetland'' except to contrast it with constructed 
wetlands, such as those that are often used to treat wastewater. 
District engineer have the discretion to determine what constitutes a 
``natural wetland'' for the purposes of this NWP. We have added a 
sentence to this paragraph to clarify that changes in wetland plant 
communities that are caused by restoring wetland hydrology are to be 
considered wetland rehabilitation activities that are authorized by 
this NWP. Such wetland rehabilitation activities are not to be 
considered conversions to another aquatic habitat type. We concur that 
compensatory mitigation should not be required for NWP 27 activities 
and have added a sentence to the text of the NWP to clearly state this 
stipulation.
    One commenter said that the NWP should prohibit the relocation of 
naturally occurring non-tidal aquatic resources. One commenter 
suggested changing the conversion provision to state that no wetlands 
may be converted to open water impoundments rather than limiting the 
prohibition to tidal wetlands. Another commenter stated that while they 
understand the need for language to clarify that conversion from 
``streams to wetlands'' is not desirable, there are some areas that 
have been drained or ditched to create water flow away from 
agricultural land, where there was previously a wetland. This commenter 
asked whether reestablishing wetlands on the site could be authorized 
by this NWP. The commenter said that the NWP is too restrictive and has 
the potential to prohibit activities that may result in aquatic 
resources that are more appropriately integrated into the landscape.
    The relocation of non-tidal waters and wetlands on a project site, 
including relocation activities that convert open water impoundments to 
non-tidal wetlands and vice versa, can result in net increases in 
aquatic resource functions and services when viewed in a watershed 
context. Therefore, we do not agree that it is appropriate to exclude 
such activity from coverage under this NWP if it meets all other 
conditions, including a net increase in resource functions and 
services. Ditches that were constructed in wetlands to drain those 
wetlands are not considered streams for the purposes of this provision 
of the NWP. As discussed earlier, this NWP authorizes the filling, 
blocking, or reshaping of drainage ditches to restore wetland 
hydrology.
    One commenter asked if the removal of bulkheads, derelict 
structures, and pilings, can be authorized by this NWP while another 
suggested that the NWP allow for the temporary use of spat (e.g., 
larval oysters) collecting devices for the purpose of shellfish 
restoration.
    The removal of structures in navigable waters of the United States 
is authorized by this NWP if it is a part of an aquatic habitat 
restoration or enhancement activity. The temporary use of spat devices 
for oyster habitat restoration is more appropriately authorized by NWP 
4.
    One commenter said that the provisions concerning shellfish seeding 
are not clear and asked if the intent of the NWP is to authorize 
shellfish seeding activities to enhance threatened shellfish 
populations. This commenter also said that shellfish enhancement 
activities should be limited to native species. One commenter 
recommended authorizing shellfish restoration activities without 
requiring pre-

[[Page 10216]]

construction notification when such activities are conducted or 
approved by a government agency with resource management oversight. One 
commenter requested we not include shellfish restoration activities in 
this NWP, because these activities alter existing substrate and benthic 
habitat and should be reviewed under the individual permit evaluation 
process. This commenter also recommended imposing a one-acre limit for 
the placement of scattered shell.
    This NWP authorizes shellfish seeding activities, which may help 
increase shellfish populations in specific waters. Division engineers 
may regionally condition this NWP to limit shellfish seeding activities 
to native species. Further, in response to a pre-construction 
notification or report, a district engineer may exercise discretionary 
authority and condition a specific NWP authorization to limit it to the 
seeding of native shellfish species. We do not agree that there should 
be no pre-construction notification requirement if there is oversight 
by another government entity with the responsibility for managing 
shellfish resources. Since these activities occur in navigable waters, 
the Corps needs to review them on a case-by-case basis to ensure that 
they result in minimal individual and cumulative adverse effects on the 
aquatic environment and navigation and provide net increases in aquatic 
resource functions and services. Shellfish restoration activities 
should be authorized by this NWP because shellfish provide important 
ecosystem services in aquatic ecosystems, including the improvement of 
water quality. In most cases, the changes to benthic habitat are minor 
when compared to the ecosystem services provided by the shellfish. We 
also do not agree that there should be a one-acre limit for the 
placement of shell to construct oyster habitat because larger oyster 
habitat construction activities can still result in a net increase in 
aquatic resource functions and services.
    One commenter said that stream restoration projects should be 
limited to 500 linear feet. One commenter stated that the construction 
of small nesting islands and the alteration of rare or imperiled 
wetlands should be not be authorized by this NWP. This commenter also 
suggested acreage limits for categories of activities authorized by 
this NWP, such as limiting excavation of wetlands to provide shallow 
water habitat for wildlife to \1/2\-acre in altered wetlands; 
excavating no more than 1\1/2\-acre of wetlands that have been 
regularly farmed within the past five years or wetlands documented to 
be dominated by invasive species; a 3-acre limit for excavation 
activities; and limiting the placement of fill for the construction of 
dikes, berms, or water control structures to two acres. This commenter 
also recommended limiting impoundments to a maximum height of six feet, 
with a maximum impounded area of no more than five acres during a 
design flood. This commenter also said that enhancement of hydrology 
should not be authorized unless a state agency concurs that the wetland 
has been farmed within the last five years or is dominated by invasive 
species.
    Since this NWP authorizes only those aquatic habitat restoration, 
establishment, and enhancement activities that result in net increases 
in aquatic resource functions and services, we do not agree that the 
recommended limits should be added to this NWP. Division engineers can 
regionally condition this NWP to restrict or prohibit its use over 
specific geographic areas or categories of waters. In response to a 
pre-construction notification, district engineers can add conditions to 
the NWP authorization to ensure that the NWP authorizes only those 
activities that result in minimal adverse effects on the aquatic 
environment.
    Two commenters supported the addition of the United States Forest 
Service as a federal agency that can develop agreements for the 
restoration, enhancement, or establishment of streams and wetlands. One 
commenter recommended removing the reversion provision of NWP 27. 
Another commenter said that the reversion provision should be 
eliminated or significantly modified because it is inconsistent with 
other NWPs. Two commenters stated that the reversion of wetlands should 
not be authorized if the wetlands were being used for compensatory 
mitigation. One commenter asked how many acres of wetlands could be 
reverted under this NWP. One commenter asked whether a ``USDA Technical 
Service Provider'' includes county soil and water conservation 
districts.
    The reversion provision is necessary for those aquatic resource 
restoration, enhancement, or establishment activities that are done in 
accordance with binding agreements, voluntary actions, or permits, 
where those agreements, actions, or permits allow the project proponent 
to revert the affected lands to its prior condition. If the reversion 
provision is removed, it would create a disincentive to do certain 
aquatic restoration, enhancement, or establishment activities that 
could provide some aquatic resource functions and services for a 
substantial period of time and benefit the watershed. Nationwide permit 
27 differs from the other NWPs because of the types of activities it 
authorizes. As stated in the Note at the end of NWP 27, reversion of an 
area used as a compensatory mitigation project is not authorized by 
this NWP. We do not track the acreage of wetland or stream restoration 
and enhancement activities, or of wetland establishment activities, 
that were authorized by NWP 27 and might be eligible for reversion. 
There is no limit on the amount of wetlands that can be reverted under 
a single authorization, provided all conditions of the NWP are met. 
County soil and water conservation districts can register with the U.S. 
Department of Agriculture to be a technical service provider.
    One commenter said that pre-construction notifications should 
include photographs, a description of pre-project site conditions, and 
a discussion of general aquatic resource functions and services 
anticipated to be provided by the activity. Another commenter stated 
that pre-construction notification should be required for all 
activities.
    Paragraph (b) of general condition 31, pre-construction 
notification, requires prospective permittees to submit documentation 
that describes the proposed activity, including the anticipated loss of 
waters of the United States and, if appropriate, sketches that help 
clarify the project. The pre-construction notification also must 
include a delineation of wetlands, other special aquatic sites, and 
other aquatic habitats. We do not agree that pre-construction 
notification should be required for all activities. The reporting 
requirements for those activities that do not require pre-construction 
notification provide sufficient opportunity for district engineers to 
notify a project proponent if the proposed work does not comply with 
the terms and conditions of the NWP. We have modified the ``Reporting'' 
provision of this NWP to require the permittee to submit information on 
the baseline ecological conditions at the project site, such as a 
delineation of wetlands, streams, and/or other aquatic habitats. We 
have also changed the ``Notification'' provision of this NWP by 
replacing the phrase ``the activity'' with ``any activity'' to clarify 
that any activity that does not require reporting requires a pre-
construction notification. The last sentence of this NWP has been 
changed to clarify that appropriate documentation concerning the 
agreement, voluntary action, or Surface Mining Control and Reclamation 
Act

[[Page 10217]]

permit is to be provided to the district engineer to fulfill the 
reporting requirement.
    One commenter said the NWP should require the use of best 
management practices to avoid sediment loading of waters especially 
when mechanized land clearing or work is conducted in waters of the 
United States. The commenter stated that best management practices, 
such as floating barriers, should also be used in upland areas to 
protect downstream water quality. One commenter stated that Tribes 
should be notified to ensure that NWP 27 activities avoid impacts to 
tribal treaty natural resources and cultural resources.
    General condition 12, soil erosion and sediment controls, requires 
permittees to implement appropriate soil and erosion and sediment 
controls during the work. In response to a pre-construction 
notification, district engineers can add conditions to the NWP 
authorization to require more specific sediment and erosion controls. 
Division engineers can impose regional condition on this NWP to require 
notification of the appropriate Tribe or Tribes if a proposed activity 
might affect tribal treaty natural resources and cultural resources. 
General condition 17, Tribal rights, requires that no NWP activity or 
its operation impair reserved treaty rights, including treaty fishing 
and hunting rights. Cultural resources are protected through the 
requirements of general condition 20, historic properties, and general 
condition 21, discovery of previously unknown remains and artifacts.
    This NWP is reissued with the modifications discussed above.
    NWP 28. Modifications of Existing Marinas. There were no changes 
proposed for this NWP. Two commenters recommended adding a condition to 
ensure the modification does not encroach upon additional waters. One 
commenter suggested adding a condition to require a minimum maneuvering 
distance for an outside slip to the boundary of the marina's riparian 
interest area. One commenter stated that modifications for marinas on 
state-owned aquatic lands should require pre-construction notification.
    This NWP clearly states that it does not authorize expansions of 
existing marinas. Since the NWP does not authorize expansions of 
existing marinas, it is not necessary to add a condition to provide a 
minimum maneuvering distance. Concerns about modifications to marinas 
constructed on state-owned submerged lands are more appropriately 
addressed through a state authorization process.
    This NWP is reissued without change.
    NWP 29. Residential Developments. We proposed to modify this NWP by 
changing the waiver provision for activities resulting in the loss of 
greater than 300 linear feet of intermittent and ephemeral stream bed, 
to clarify that the district engineer will only issue the waiver after 
making a project-specific written determination that the activity will 
result in minimal adverse effects.
    One commenter said that this NWP should not be reissued. One 
commenter suggested revoking this NWP because of the large scale of 
these projects and associated impacts to waters and said that 
individual permits should be required for these activities. Two 
commenters stated that the use of this NWP permit to authorize \1/2\-
acre losses of waters of the United States would result in more than 
minimal adverse effects on an individual and cumulative basis. Two 
commenters said that this NWP should not authorize residential 
subdivisions, and should be limited to single family homes. Four 
commenters recommended decreasing the acreage limit for losses of 
waters of the United States to 1/4-acre. Two commenters suggested 
increasing the acreage limit to 1 acre. One commenter requested 
clarification on whether the acreage limits are applied cumulatively 
when there is any subsequent expansion of a residential development.
    We do not agree that this NWP should not be reissued or limited to 
single family homes. The construction of residential developments, 
including multiple unit residential developments, may have minimal 
individual and cumulative adverse effects on the aquatic environment, 
and is appropriate for NWP authorization if it meets the conditions of 
this NWP. Provided the limits are met, the effects to waters of the 
United States are similar whether single family homes or groups of 
single family homes are constructed as a result of using this NWP to 
authorize discharges of dredged or fill material into waters of the 
United States. The \1/2\-acre limit, as well as the other terms and 
conditions of this NWP, is consistent with longstanding limits on this 
and other NWPs, and is appropriate for ensuring that this NWP 
authorizes only those activities with minimal adverse effects on the 
aquatic environment. Division engineers can regionally condition this 
NWP to reduce the acreage limit or restrict or prohibit its use in 
specific regions or waters. In response to a pre-construction 
notification, district engineers may exercise discretionary authority 
to add conditions to the NWP authorization or require an individual 
permit. The \1/2\-acre and 300 linear foot limits apply to single and 
complete projects. If a project proponent requests NWP authorization to 
conduct additional discharges of dredged or fill material into waters 
of the United States and modify a previously authorized single and 
complete residential development project, both the previously 
authorized losses and the additional losses are applied to the \1/2\-
acre and/or 300 linear foot limits. If the modification to the 
residential development is a separate single and complete project with 
independent utility from the previously authorized residential 
development, then a separate NWP authorization may be issued. The 
``Definitions'' section includes further clarification regarding single 
and complete projects.
    Several commenters objected to providing district engineers with 
the authority to waive the 300 linear foot limit for the loss of 
intermittent and ephemeral stream bed on a case-by-case basis after 
reviewing a pre-construction notification and determining that the 
proposed activity results in minimal adverse environmental effects. One 
commenter said that the waiver provision would result in more than 
minimal cumulative adverse effects on a watershed basis. Another 
commenter stated that use of the waiver would authorize the losses of 
large amounts of headwater streams. A few commenters suggested the 
waiver provision should be removed from this NWP. Three commenters 
recommended increasing the linear foot limit for the loss of stream bed 
to 500 feet. Two commenters supported the clarification that a finding 
of minimal adverse environmental effects would be required to issue a 
waiver.
    Responses to comments regarding the 300 linear foot limit for 
losses of stream bed and the waiver provision for the loss of greater 
than 300 linear feet of intermittent and ephemeral stream beds are 
discussed in a previous section of this 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.
    One commenter recommended that compensatory mitigation be required 
for all unavoidable impacts to wetlands authorized under this NWP. 
Several commenters said that the NWP should require permittees to 
minimize on-and off-site impacts and avoid flooding, because the 
general conditions do not adequately address flooding or water quality 
impacts. Several commenters said that this NWP should not authorize 
residential subdivisions unless the

[[Page 10218]]

project proponents can demonstrate those subdivisions will not cause an 
increased flood hazard on other properties.
    We do not agree that it is necessary to require compensatory 
mitigation for all activities authorized by this NWP to satisfy the 
minimal adverse environmental effects requirement for a general permit. 
For many small losses of waters of the United States authorized by this 
NWP, it is not practicable to require compensatory mitigation to offset 
those losses, especially in areas where there are no mitigation bank or 
in-lieu fee program credits available. The requirements for permittee-
responsible mitigation in 33 CFR 332.1 through 332.7 impose substantial 
documentation and planning requirements that affect the practicability 
of providing ecologically successful permittee-responsible mitigation, 
especially for small losses of waters of the United States. 
Compensatory mitigation for NWP activities is only necessary in cases 
where the district engineer makes a project-specific determination that 
compensatory mitigation is needed to ensure that the activity results 
in minimal individual and cumulative adverse effects on the aquatic 
environment (see 33 CFR 330.1(e)(3)). General condition 23, mitigation, 
requires permittees to avoid and minimize adverse effects to waters of 
the United States on the project site, to the maximum extent 
practicable. Concerns about adverse effects on floodplains and 
floodways are more appropriately addressed by the state and local 
agencies that have the primary responsibility for floodplain 
management. General condition 10, fills within 100-year floodplains, 
requires permittees to comply with applicable Federal Emergency 
Management Agency-approved state or local floodplain management 
requirements. Most floodplains are uplands, not waters of the United 
States, and the Clean Water Act Section 404 permit program cannot be 
used to manage floodplain impacts, except for discharges of dredged or 
fill material or other pollutants into wetlands and other 
jurisdictional waters that are located in floodplains. Residential 
developments, whether they are single units or multiple-unit 
subdivisions, must comply with all terms and conditions of this NWP, 
including the requirement that they result in minimal adverse 
environmental effects.
    One commenter said that this NWP should not authorize activities 
that result in adverse impacts to state or federally listed threatened 
or endangered species or their habitats, or where there are rare or 
imperiled habitat types. One stated that this NWP should not authorize 
discharges of dredged or fill material below the ordinary high water 
mark of any water of the United States or areas of fish habitat. One 
commenter said that attendant features should be limited to a garage, a 
driveway no more than 16 feet wide, parking or vehicle turn areas, 
lawns that are no more than 15 feet from the building pad, septic 
fields, utilities, deck foundations, and access paths. One commenter 
suggested modifying this NWP to require culverts and other measures to 
maintain pre-construction drainage patterns on the site. One commenter 
said this NWP should require on-site sewage treatment systems.
    Compliance with the federal Endangered Species Act is addressed by 
general condition 18. Compliance with state or local threatened or 
endangered species laws or ordinances, or state or local requirements 
to avoid rare or imperiled habitats, is the responsibility of the 
permittee. Since all activities authorized by this NWP require pre-
construction notification, district engineers will review proposed 
activities that involve discharging dredged or fill material into open 
waters, including fish habitat, to ensure that those activities result 
in minimal adverse effects on the aquatic environment. The text of the 
NWP provides examples of the types of attendant features that may be 
authorized. Further restrictions on those attendant features may be 
provided through regional conditions imposed by Division engineers or 
activity-specific conditions added to an NWP 29 authorization by a 
District engineer. General condition 9, management of water flows, 
requires permittees to maintain, to the maximum extent practicable, the 
pre-construction course, condition, capacity, and location of open 
waters, such as streams, except under certain situations identified in 
the text of the general condition. Sewage treatment system requirements 
for residential developments are the primary responsibility of state or 
local governments.
    One commenter requested clarification on whether this NWP can be 
used to authorize phased development projects. Several commenters 
suggested limiting this NWP to a single use.
    General condition 15, single and complete project, states that the 
same NWP can only be used once for the same single and complete 
project. If a particular phase of a phased development project is a 
single and complete project with independent utility, a separate NWP 29 
authorization can be used to authorize that single and complete non-
linear project.
    Two commenters said that the NWP should require vegetated buffers. 
One commenter stated that district engineers have too much discretion 
regarding buffers and the general condition restricts buffers so that 
they are not as effective as they could be.
    Compensatory mitigation for activities authorized by NWP 29 may be 
provided through the establishment and maintenance of riparian areas 
next to open waters. Paragraph (f) of general condition 23 addresses 
the use of riparian areas as compensatory mitigation, with recommended 
widths. The recommended widths are based in part on the minimum width 
necessary for riparian areas to help protect or improve water quality, 
and in part on the principle that the amount of compensatory mitigation 
must be roughly proportional to the permitted impacts (see 33 CFR 
320.4(r)(2)). Since the NWP has an acreage limit of \1/2\-acre, any 
required compensatory mitigation must be roughly proportional to the 
authorized loss of waters of the United States.
    This NWP is reissued as proposed.
    NWP 30. Moist Soil Management for Wildlife. No changes were 
proposed for this NWP and no comments were received. This NWP is 
reissued without change.
    NWP 31. Maintenance of Existing Flood Control Facilities. We 
proposed to modify this NWP to authorize, in cases where a section 404 
and/or section 10 permit would be required, the removal of vegetation 
from levees associated with a flood control project.
    Several commenters supported the proposed modification and said 
that vegetation removal is a critical component of the maintenance of a 
flood control project to ensure continued effectiveness and integrity 
of levees and other flood control facilities. Two commenters objected 
to the proposed modification. One commenter opposed the removal of 
vegetation from flood control facilities, stating the vegetation has 
ecological importance. One commenter said that vegetation removal is 
not regulated by the Corps. One commenter stated that if the plant 
species proposed to be removed have cultural and medicinal Native 
American traditional uses, consultation with the Tribe or another type 
of permit should be required for the activity.
    We have retained the proposed language in this NWP, to authorize 
the removal of vegetation from a levee,

[[Page 10219]]

when that activity involves a discharge of dredged or fill material 
into waters of the United States or is considered to be work in 
navigable waters of the United States for the purposes of Section 10 of 
the Rivers and Harbors Act of 1899. We agree that vegetation removal 
that does not involve such a discharge does not require a DA permit. 
Division engineers can regionally condition this NWP to identify plant 
species that have cultural and medicinal uses by Tribes, and to require 
government-to-government consultation to address impacts to such 
species. General condition 17, Tribal rights, protects reserved treaty 
rights, including reserved water rights and treaty fishing and hunting 
rights. Natural or cultural tribal trust resource concerns can still be 
addressed through the NWP decisionmaking process, and would not 
necessarily result in requiring an individual permit.
    Several commenters said that vegetation may strengthen the 
integrity of levees and stated that individual permits should be 
required for vegetation removal. One commenter stated that vegetation 
on levees should be allowed or retained as part of levee management and 
that the vegetation should be removed only if specific levee 
maintenance or safety concerns are identified. One commenter stated 
that not allowing flood control districts to remove vegetation from 
levees would put them into non-compliance with their permits and with 
other state and local approvals. One commenter said that the removal of 
vegetation from a levee should only be authorized after Endangered 
Species Act consultation has been completed.
    The decision on whether vegetation needs to be removed from a levee 
to maintain its functional and structural integrity is more 
appropriately made by those entities that are responsible for ensuring 
the integrity and functional effectiveness of that levee. That decision 
is not the responsibility of the Corps Regulatory Program or its staff. 
The NWP is only a means to provide Department of the Army authorization 
for such activities, if a section 404 and/or section 10 permit is 
required. If the vegetation removal may affect a listed species under 
the Endangered Species Act, and a Department of the Army permit is 
required, the Corps will conduct section 7 consultation in accordance 
with general condition 18, endangered species, unless another Federal 
agency has already fulfilled the section 7 requirements, or the project 
proponent has complied with the Endangered Species Act and received an 
Endangered Species Act Section 10 permit.
    Several commenters said that there should be an acreage limit for 
vegetation removal. Another commenter recommended imposing a linear 
foot limit on vegetation removal. One commenter recommended revoking 
this NWP in California.
    Since this NWP authorizes maintenance activities, we do not believe 
there should be an acreage or linear foot limit on vegetation removal. 
Division engineers may also add regional conditions to this NWP to 
impose acreage or linear foot limits on vegetation removal.
    One commenter stated that many NWP authorizations are related to 
the maintenance baseline and the NWP should provide more details about 
the maintenance baseline approval process. This commenter suggested 
that the NWP specify: the deadline for completion, the responsible 
party, the regulating entity that approves the maintenance baseline, 
etc. One commenter requested clarification on the timeframe for 
approval of the maintenance baseline.
    The current terms and conditions of the NWP provide sufficient 
details on what is needed to establish the maintenance baseline. 
Approval of the maintenance baseline is to be made within the 45-day 
review period, which begins once a complete pre-construction 
notification is received by the appropriate Corps district office. The 
pre-construction notification must include a description of the 
maintenance baseline.
    Many commenters expressed concern about the mitigation provision of 
this NWP, especially the one-time limit for mitigation per facility 
regardless of the number of times maintenance occurs. These commenters 
said that limiting compensatory mitigation may result in more than 
minimal adverse environmental effects, including adverse impacts to 
floodplains and increased flood risk. These commenters recommended 
requiring mitigation for each maintenance activity. One commenter 
stated that vegetation removal should not be authorized because 
effective compensatory mitigation cannot be provided. One commenter 
said that certain riparian functions, such as shading, and losses of 
aesthetic values, cannot be provided through off-site mitigation.
    We do not agree that compensatory mitigation should be required for 
each maintenance activity. On-going maintenance of flood control 
facilities is necessary to ensure that those projects fulfill their 
intended purposes. Any compensatory mitigation that was required when 
the maintenance baseline was established is sufficient to offset losses 
of aquatic resource functions. If maintenance is done in a timely 
manner, there is likely to be little in terms of increases in aquatic 
resource functions between maintenance activities. The purpose of 
maintaining these flood control facilities is to reduce flood risk. 
Riparian functions that increased between maintenance activities do not 
need to be replaced by imposing compensatory mitigation requirements on 
this NWP.
    Several commenters said that the use of this NWP results in more 
than minimal individual and cumulative impacts, and may also inhibit 
comprehensive basin-wide flood risk management planning and restoration 
approaches.
    We do not agree that these maintenance activities cause more than 
minimal adverse effects on the aquatic environment, on an individual or 
cumulative basis. This NWP is intended as a tool to support appropriate 
flood management activities, including comprehensive flood risk 
management planning and restoration processes, where maintenance of 
existing flood control structures is required.
    One commenter recommended modifying the pre-construction 
notification provision to require a topographic map identifying the 
disposal site. One commenter said that the 1996 Water Resources 
Development Act allows for regional variations in vegetation management 
on levees.
    The NWP already requires the prospective permittee to submit 
information concerning the location of the dredged material disposal 
site. There are a variety of maps that could be used to provide that 
information, and we do not believe it should be restricted to 
topographic maps. We have modified this NWP to state that all dredged 
material must be placed in an area that has no waters of the United 
States or in a separately authorized disposal site, since the disposal 
of dredged material into non-jurisdictional waters and wetlands, as 
well as uplands, does not require DA authorization. As stated above, 
the decision on whether to remove vegetation is the responsibility of 
the entity charged with managing and maintaining the flood control 
facility.
    This NWP is reissued with the modifications discussed above.
    NWP 32. Completed Enforcement Actions. There were no changes 
proposed for this NWP. One commenter recommended adding a condition to 
the NWP requiring that the state be a party to any lawsuit, or have an 
opportunity to review the consent or settlement agreement. Another 
commenter requested coordination with any

[[Page 10220]]

affected Tribes prior to administering an enforcement action to ensure 
that Tribal treaty resources are protected.
    This NWP only provides Federal authorization under Section 10 of 
the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water 
Act, and it is not appropriate to modify this NWP to require state 
involvement in these actions. States are often involved as co-
regulators in enforcement activities, under various authorities, and 
this NWP in no way undercuts those authorities. General condition 17, 
tribal rights, states that no activity or its operation may impair 
reserved tribal rights.
    This NWP is reissued as proposed.
    NWP 33. Temporary Construction, Access, and Dewatering. We did not 
propose any changes to this NWP. Several commenters recommended that 
the Corps define the term ``temporary.'' One commenter said that 
``temporary'' should be less than two years, another stated that one 
year should be the limit, and a third commenter suggested 90 days as 
the limit for what constitutes a temporary structure or fill. Several 
commenters stated that the NWP should require a specific timeframe and 
deadline for completion of revegetation activities. Other commenters 
said that any revegetation should use only native plant species 
associated with the general habitat type that had existed prior to 
construction.
    The term ``temporary'' should be determined by district engineers 
on a case-by-case basis, after considering factors such as the type of 
project, the waters affected by the activity, the construction 
techniques and equipment used, etc. In response to a pre-construction 
notification, district engineers can add conditions to the NWP 
authorization to impose specific time frames for revegetating affected 
areas. Activity-specific conditions may also be added to the NWP 
authorization to specify the plant species to be used at the site.
    One commenter asked why the NWP would state that a separate section 
10 permit is required if a structure is left in place in navigable 
waters of the United States after completion of construction, 
especially if the waterbody is not a section 10 water. This commenter 
wondered how a ``structure'' constructed in a non-Section 10 water 
could be left in place and still qualify as a temporary structure.
    In some cases, it may be more environmentally beneficial to leave 
part of a structure in place in navigable waters of the United States, 
when complete removal of the structure is expected to result in 
substantial adverse environmental effects. For example, a structure may 
be cut near the ocean bottom, but part of the structure and its 
foundation left in place, because removing the entire structure and its 
foundation would result in substantial disturbance of the ocean bottom. 
Leaving those portions of the original structure and foundation in 
place requires a permit under Section 10 of the Rivers and Harbors Act 
of 1899 because it constitutes an obstruction that may alter the 
course, condition, or capacity of navigable waters of the United 
States. A structure left in place in a waterbody subject only to 
section 404 jurisdiction does not require section 10 authorization. 
Such a structure would not require a section 404 permit unless it meets 
the definition of fill material (see 33 CFR 323.3(c)).
    One commenter asked why NWP 33 activities require pre-construction 
notification for temporary structures, work, and discharges while these 
types of activities may be authorized under NWPs 3, 12, 13, and 14 
without a pre-construction notification.
    While temporary structures, work, and fills are authorized by NWPs 
3, 12, 13, and 14, those NWPs have terms and conditions to help ensure 
that those activities result in minimal adverse effects on the aquatic 
environment. Since NWP 33 can be used to authorize temporary 
structures, work, and discharges done in association with a wide 
variety of other categories of activities, that uncertainty makes it 
necessary to require pre-construction notification for all activities 
authorized by NWP 33. Such a requirement allows the Corps to review the 
temporary and permanent impacts that are likely to occur as a result of 
the overall activity.
    One commenter stated that the NWP should never authorize temporary 
fills that impact more than 1,000 square feet or discharge more than 25 
cubic yards into waters of the U.S., and temporary structures or 
construction mats shall not impact more than \1/10\-acre. One commenter 
stated that the NWP should require that geotextile fabric be installed 
prior to placement of fill material, and two commenters suggested that 
temporary culverts and bridges in streams should be required to match 
the bankfull width and stream slope. Another commenter stated that all 
slurry resulting from dewatering operation should be discharged through 
a filter bag or pumped to a sump located away from wetlands and surface 
waters and allowed to filter through natural upland vegetation, gravel 
filters, or other engineered devices for a sufficient distance and/or 
period of time necessary to remove sediment or suspended particles. One 
commenter stated that cofferdams should be required to be maintained in 
good working order throughout the duration of the project.
    We do not agree that there should be acreage, linear foot, or cubic 
yard limits on this NWP since it authorizes temporary structures, work, 
or discharges, and all activities require pre-construction 
notification. In response to a pre-construction notification, district 
engineers can add activity-specific conditions to the NWP authorization 
to impose limits or require specific best management practices or 
specific construction techniques to minimize adverse effects to the 
aquatic environment where necessary.
    We have modified this NWP to state that temporary fill must be 
entirely removed to an area that has no waters of the United States, 
since the placement of fill material into non-jurisdictional waters and 
wetlands, as well as uplands, does not require DA authorization.
    The NWP is reissued with the modification discussed above.
    NWP 34. Cranberry Production Activities. We did not propose any 
changes to the NWP. One commenter said that this NWP should not 
authorize losses of wetland functions. Two commenters expressed concern 
that the 10-acre limit would allow significant losses of wetland 
acreage and functions and values, if the 10-acre limit is applied only 
to the five year period the NWP is in effect. These commenters proposed 
making the 10-acre limit apply to future activities. One commenter 
suggested limiting the NWP authorization to a single cranberry 
production unit. One commenter said that this NWP should not be 
reissued.
    This NWP does not authorize discharges of dredged or fill material 
that would result in a net loss of waters of the United States. While 
there would be some loss of wetland function as wetlands are converted 
for cranberry production, the NWP requires wetland acreage to be 
maintained. There would be no loss of wetland acreage over time due to 
future activities since the NWP does not authorize discharges of 
dredged or fill material that would result in permanent losses of 
wetland acres. This NWP applies to single and complete cranberry 
production activities, which would be identified by district engineers 
during the review of pre-construction notifications.
    This NWP is reissued without change.
    NWP 35. Maintenance Dredging of Existing Basins. There were no 
changes proposed for this NWP. Two commenters recommended adding limits 
to this NWP. Two commenters

[[Page 10221]]

said this NWP should not be used in areas with suspected sediment 
contamination, especially in areas where there might be contamination 
from fuel. Another commenter stated the applicant should demonstrate 
that the sediment is not contaminated. One commenter asked that the 
term ``upland'' be clarified to state that it means land located above 
the ordinary high water mark. One commenter stated that this NWP would 
have greater utility if it authorized beneficial use of dredged 
material, such as wetland restoration, enhancement, or establishment 
activities.
    Since this NWP authorizes only maintenance dredging activities in 
existing marina basins, we do not believe it is necessary to add an 
acreage limit or other type of quantitative limit. Division engineers 
can regionally condition this NWP to require notification to the 
district engineer. This NWP is limited to maintenance dredging in 
marina basins, access channels to marinas, and boat slips, which are 
likely to have some degree of contaminated sediment in the substrate 
because of past and present boat use, especially in larger marinas. 
Removal of such contaminated sediments, and complying with the 
requirement in the NWP to deposit the dredged material in an upland 
site, will help ensure the activity results in minimal adverse effects 
on the aquatic environment. Defining the term ``upland'' to mean lands 
located above an ordinary high water mark would be incorrect. There may 
be wetlands landward of the ordinary high water mark. We have modified 
this NWP to state that dredged material must be placed in an area that 
has no waters of the United States, since the disposal of dredged 
material into non-jurisdictional waters and wetlands, as well as 
uplands, does not require DA authorization. The district engineer may 
issue a separate Department of the Army authorization to a project 
proponent who wants to use the dredged material to restore, enhance, or 
establish wetlands.
    One commenter stated that precautions should be taken to ensure 
that dredging equipment does not entrain or kill any Federally-listed 
species and recommend that preemptive trawling around the dredge head 
be conducted to capture or relocate state or federally listed species.
    General condition 18 addresses compliance with the Endangered 
Species Act, and section 7 consultation is required for any activity 
that may affect listed species or is located in designated critical 
habitat.
    This NWP is reissued with the modification discussed above.
    NWP 36. Boat Ramps. We did not propose any changes to this NWP. One 
commenter said that boat ramps should not be authorized by NWPs because 
they cause significant environmental impacts, including impacts to 
Tribal treaty fishing activities and access. One commenter stated that 
this NWP should be limited to individual riparian lot owners and not 
authorize commercial boat ramps. One commenter said that the NWP should 
require notification to the state agency responsible for managing 
state-owned submerged lands.
    The terms and conditions of this NWP (specifically the limits on 
fill volume and ramp width) will ensure that the NWP authorizes only 
those activities that result in minimal adverse effects on the aquatic 
environment. Division engineers may regionally condition this NWP to 
restrict or prohibit its use in specific waters or geographic areas if 
they have concerns that more than minimal individual and cumulative 
adverse environmental effects may occur. In response to a pre-
construction notification, district engineer may add activity-specific 
conditions to the NWP authorization to satisfy the minimal adverse 
environmental effects requirement. We do not agree that this NWP should 
be limited to private land owners. Commercial boat ramps that comply 
with the terms and conditions of this NWP will also result in minimal 
adverse environmental effects. The potential for adverse effects is 
based on the footprint of the ramp, which is limited by the conditions 
of this NWP, not its ownership. State agencies responsible for managing 
submerged lands may develop their own procedures for regulating and 
authorizing the construction of boat ramps on submerged lands. The 
Corps has neither the authority nor the resources to enforce any state 
requirements with respect to such lands.
    Two commenters recommended reducing the pre-construction 
notification thresholds for this NWP. One commenter suggested limiting 
discharges of dredged or fill material to 25 cubic yards, with a 
maximum boat ramp width of 12 feet. Another commenter said that the 
quantitative limits for this NWP should not be waived. One commenter 
stated that the current 50 cubic yard limit is too small and should be 
increased to authorize larger boat ramps.
    The pre-construction notification thresholds are sufficient for 
ensuring that this NWP authorizes activities with minimal individual 
and cumulative adverse effects on the aquatic environment. We have 
retained the provision authorizing district engineers to issue written 
waivers to the 50 cubic yard and/or 20 foot width limits, if a proposed 
activity is determined to result in minimal adverse environmental 
effects. The waiver provision may be used to authorize larger boat 
ramps, as long as they are determined by the district engineer to 
result in minimal adverse environmental effects.
    One commenter asked for clarification on what is meant by placement 
in the upland. One commenter said that these activities may affect 
historic properties and the activity should not be authorized unless 
the state concurs that there are no documented resources within the 
permit area.
    We have modified paragraph (d) to clarify that all excavated 
material must be removed to an area that has no waters of the United 
States, because some wetlands and waters are not subject to Clean Water 
Act jurisdiction and section 404 permits are not required to discharge 
dredged or fill material into those non-jurisdictional wetlands and 
waters. A separate Department of the Army authorization is required if 
the project proponent wants to deposit the excavated material into 
waters of the United States. Activities authorized by this NWP must 
comply with general condition 20, historic properties, as well as 
general condition 21, discovery of previously unknown remains and 
artifacts. District engineers will conduct National Historic 
Preservation Act Section 106 consultation if they determine the 
proposed activity has the potential to cause effects to any historic 
property.
    This NWP is reissued as proposed.
    NWP 37. Emergency Watershed Protection and Rehabilitation. No 
changes were proposed for this NWP. Two commenters stated that in their 
region, flood control activities including those authorized by this 
NWP, are important and suggested reducing the 45-day waiting period for 
pre-construction notifications to 21 days. Two commenters expressed 
support for allowing district engineers to waive the pre-construction 
notification requirements in cases where there is an unacceptable 
hazard to life or a significant loss of property or economic hardship 
will occur. One commenter said that although this NWP is intended to 
authorize watershed protection and rehabilitation, these activities may 
result in a net loss of waters and appropriate mitigation should be 
required.
    We do not believe it would be appropriate to reduce the pre-
construction notification review period

[[Page 10222]]

for this NWP from 45 days to 21 days. The NWP provides flexibility for 
the emergency watershed protection and rehabilitation activities to 
proceed immediately if there is an unacceptable hazard to life or a 
significant loss of property or economic hardship will occur. The NWP 
does not allow the district engineer to waive the pre-construction 
notification requirement in cases where there would be unacceptable 
hazards to life or significant losses of property or economic 
hardships. If a project proponent wants to use NWP 37 to authorize an 
emergency watershed protection and rehabilitation activity, pre-
construction notification is required. This is a minimally burdensome 
requirement that can be complied with quickly which allows the district 
engineer to verify that there is a genuine emergency. In addition, in 
response to a pre-construction notification, the district engineer may 
condition the NWP authorization to require compensatory mitigation to 
offset losses of aquatic resources and ensure that the adverse effects 
on the aquatic environment are minimal (see 33 CFR 330.1(e)(3) and 
general condition 23, mitigation).
    The NWP is reissued without change.
    NWP 38. Cleanup of Hazardous and Toxic Waste. We did not propose 
any changes for this NWP. One commenter stated the NWP should be 
revoked because hazardous waste cleanup from aquatic areas has the 
potential to cause significant adverse environment effects during and 
after the cleanup activities. This commenter said that these activities 
require site-specific review and should not be authorized by NWP. 
Another commenter recommended adding a condition to the NWP to require 
minimization, to the maximum extent possible, of impacts to waters and 
wetlands, and require restoration of the affected areas.
    The cleanup of hazardous and toxic wastes, if conducted properly, 
will improve the aquatic environment by removing harmful chemicals and 
other substances that are likely to degrade the quality of wetlands, 
streams, and other aquatic resources, as well as the functions they 
provide. This NWP requires pre-construction notification, which will 
provide the district engineer the opportunity to review the proposed 
activity, including available site-specific information, to determine 
if that activity qualifies for NWP authorization. This NWP authorizes 
cleanup activities conducted, ordered, or sponsored by other government 
agencies, which have also reviewed those activities. In some cases 
these activities need to be commenced quickly and it could cause 
additional harm to the aquatic environment if they had to wait for an 
individual permit to be issued. The district engineer may also add 
activity-specific conditions to the NWP authorization to require 
compensatory mitigation, including restoration or rehabilitation of 
affected aquatic resources (see 33 CFR 330.1(e)(3) and general 
condition 23, mitigation) to satisfy the minimal adverse environmental 
effects requirement for general permits.
    This NWP is reissued without change.
    NWP 39. Commercial and Institutional Developments. We proposed to 
modify this NWP by changing the waiver provision for activities 
resulting in the loss of greater than 300 linear feet of intermittent 
and ephemeral stream bed, to clarify that the district engineer will 
only issue the waiver after making a project-specific written 
determination that the activity will result in minimal adverse effects.
    Two commenters expressed support for the proposed modification. One 
commenter said that intermittent streams should be removed from the 
waiver provision so that the 300 linear foot limit could be waived only 
for losses of ephemeral streams. One commenter recommended removing the 
waiver provision.
    We have retained the provision allowing the 300 linear foot limit 
to be waived for losses of intermittent stream bed, since such 
activities may, in some cases, result in minimal adverse effects on the 
aquatic environment. General comments concerning the 300 linear foot 
limit to the loss of stream bed are discussed in a separate section of 
the preamble.
    One commenter urged the elimination of the pre-construction 
notification because that requirement results in delays and increases 
in cost. One commenter recommended conducting a natural heritage 
database search if a waiver determination is made that the activity 
will result in minimal adverse effects.
    The pre-construction notification requirement is necessary so that 
all of these activities are reviewed by district engineers to ensure 
that those activities result in minimal adverse effects on the aquatic 
environment. District engineers may add conditions to the NWP 
authorization to require compensatory mitigation or other measures to 
comply with the minimal adverse environmental effects requirement 
established for general permits. District engineers may consider 
information from state natural heritage databases where appropriate 
when evaluating a pre-construction notification involving a proposed 
waiver of the 300 linear foot limit.
    Two commenters suggested increasing the acreage limit from \1/2\ to 
one acre. Another said that acreage limits should be established on a 
regional or watershed basis, instead of a single national acreage 
limit. Two commenters suggested increasing the linear foot limit to 500 
feet. One commenter stated that the NWP should not authorize activities 
that are not water dependent.
    We believe that both the \1/2\-acre limit and the 300 linear foot 
limit are necessary to ensure that this NWP authorizes activities that 
result only in minimal individual and cumulative adverse effects on the 
aquatic environment. Division engineers can regionally condition this 
NWP to further ensure only minimal adverse effects to the aquatic 
environment occur in a particular area or region, based on region 
specific conditions. District engineers can also add specific 
conditions to an NWP authorization to ensure minimal individual or 
cumulative adverse effects. The statutory basis for authorizing 
activities by general permits is that they have minimal adverse 
effects, individually and cumulatively, not that they be water 
dependent.
    One commenter said that commercial and institutional developments 
are typically phased developments, are larger in scale than other 
projects, and should not be authorized by NWP. One commenter said that 
this NWP should not be reissued because these activities result in more 
than minimal cumulative adverse effects to wetlands and streams. One 
commenter suggested requiring compensatory mitigation for all 
activities authorized by this NWP. Two commenters said that this NWP 
should include a requirement to establish buffers next to waters of the 
United States, clarification that the limits apply to the project site 
and not to multiple applicants, and a provision requiring flood 
protections. One commenter stated industrial facilities that may be 
authorized by this NWP cause indirect impacts to water quality that 
could be significant and suggested not reissuing this NWP.
    Phased developments may be authorized by general permits, as long 
as they comply with all applicable terms and conditions of those 
general permits. In particular, an NWP may only be used once for each 
single and complete project. The limits in this NWP, which are 
consistent with those in many other NWPs, will generally ensure minimal 
adverse effects. In specific watersheds or other geographic areas where 
a

[[Page 10223]]

district engineer is concerned that the use of NWP 39 may result in 
more than minimal cumulative adverse effects to the aquatic 
environment, the division engineer may regionally condition this NWP to 
restrict or prohibit its use to ensure that the threshold for minimal 
individual and cumulative adverse effects on the aquatic environment is 
not exceeded. We do not agree that compensatory mitigation should be 
required for all activities authorized by this NWP. District engineers 
will add activity-specific conditions to the NWP authorization to 
require compensatory mitigation in accordance with general condition 
23, mitigation (also see 33 CFR 330.1(e)(3)), where necessary to ensure 
minimal effects. The establishment and maintenance of riparian areas 
next to open waters, or buffers next to wetlands, may be required as 
compensatory mitigation, in accordance with general condition 23, 
mitigation, and the regulations at 33 CFR part 332. The acreage limits 
of this NWP apply to single and complete projects, even though a single 
and complete project may have more than one project proponent. In 
general, a commercial development project in which a developer prepares 
a large site and then markets individual lots to individual builders 
would be considered one single and complete project and the acreage 
limits would apply to the development as a whole. See the definition of 
``single and complete non-linear project'' for further information. 
General condition 10, fills in 100-year floodplains, requires 
permittees to comply with applicable state or local floodplain 
management requirements that have been approved by the Federal 
Emergency Management Agency. District engineers will review pre-
construction notifications requesting NWP 39 authorization for 
industrial facilities to ensure that adverse effects to water quality 
caused by the NWP activity are minimal, individually and cumulatively.
    One commenter objected to authorizing the expansion of commercial 
and institutional developments into waters of the United States, 
stating that it discourages avoidance and minimization and is contrary 
to the 404(b)(1) Guidelines. One commenter requested clarification 
whether this NWP applies to new project construction or existing 
construction projects so the acreage limits are applied cumulatively 
for both the original construction and any subsequent expansion of the 
development. One commenter asked whether certain categories of 
activities that were not authorized by the 2007 version of NWP 39, 
specifically new golf courses, new ski areas, or oil or gas wells, 
could be expanded through the authorization provided by this NWP. Three 
commenters suggested eliminating the exclusion for the construction of 
oil and gas wells and attendant features.
    The expansion of commercial and institutional developments into 
waters of the United States may qualify for NWP authorization, as long 
as it complies with all applicable terms and conditions of the NWP and 
results in minimal individual and cumulative adverse effects on the 
aquatic environment. This NWP complies with the 404(b)(1) Guidelines, 
especially 40 CFR 230.7, which addresses the issuance of general 
permits. The acreage limit applies to a single and complete project. 
The expansion of an existing commercial or institutional development 
may only be authorized under a separate NWP authorization if it is a 
separate single and complete project with independent utility. For 
example, one or more phased components of a commercial or institutional 
development may have independent utility and may be authorized as 
separate single and complete projects. The expansion of existing golf 
courses or ski areas may be authorized by this NWP. We agree that the 
construction of pads for oil and gas wells is a type of commercial 
development that would be appropriate for inclusion in this NWP. 
District engineers may add conditions to NWP 39 authorizations to 
require the removal of these pads and restoration of the site once oil 
or gas extraction operations have ceased and the wells will no longer 
be used.
    One commenter said that this NWP could be used to authorize 
activities associated with wind energy generating structures, solar 
towers, or overhead utility lines, which have the potential to 
interfere with Department of Defense's long range surveillance, 
homeland defense, testing, and training missions. This commenter 
requested that copies of NWP 39 pre-construction notifications and NWP 
verification letters for these activities be provided to the Department 
of Defense Siting Clearinghouse, so that the Department of Defense 
could have an opportunity to coordinate with the project proponent to 
ensure that long range surveillance, homeland defense, testing, and 
training missions are not adversely affected by these activities.
    We have added a Note at the end of this NWP to require district 
engineers to send pre-construction notifications and NWP verification 
letters to the Department of Defense Siting Clearinghouse if NWP 39 is 
proposed to be used, and is used, to authorize the construction of wind 
energy generating structures, solar towers, or overhead transmission 
lines. The Department of Defense Siting Clearinghouse is responsible 
for coordinating with the project proponent and resolving any potential 
effects on Department of Defense long range surveillance, homeland 
defense, testing, and training missions.
    This permit is reissued with the modification discussed above.
    NWP 40. Agricultural Activities. We proposed to modify this NWP so 
the 300 linear foot limit applies to all stream losses, not just 
drainage ditches constructed in streams. To waive the 300 linear foot 
limit for losses of intermittent or ephemeral stream bed, the district 
engineer would have to make a project-specific written determination 
that the activity will result in minimal adverse effects.
    Two commenters support the changes and said the modification would 
ensure NWP 40 authorizes activities with minimal adverse effects on the 
aquatic environment. One commenter opposed expanding the 300 linear 
foot limit to all stream losses, stating that the NWP should not 
authorize the loss of natural streams. Another commenter recommended 
removing intermittent streams from the waiver provision to limit it to 
ephemeral streams. One commenter said that waivers for the loss of 
greater than 300 linear feet of intermittent and ephemeral streams 
should not be issued until a natural heritage database search was 
completed. Two commenters stated that the acreage limit and the ability 
to waive the 300 linear foot limit do not adequately address cumulative 
impacts and requested the waiver provision be removed.
    Comments concerning the 300 linear foot limits for the loss of 
stream bed and the waiver process are discussed in a previous section 
of the preamble. We are adopting the proposed language for the waiver 
provision. We are retaining the provision allowing the 300 linear foot 
limit to be waived for losses of ephemeral and intermittent stream bed, 
since such activities may result in minimal adverse effects on the 
aquatic environment. District engineers may consider information from 
state natural heritage databases when evaluating a pre-construction 
notification involving a proposed waiver of the 300 linear foot limit. 
We believe that both the \1/2\-acre limit and 300 linear foot limit for 
stream bed losses, along with the division engineer's authority to add 
regional

[[Page 10224]]

conditions to this NWP and the district engineer's authority to add 
activity-specific conditions to an NWP authorization, will ensure that 
the NWP authorizes activities with minimal individual and cumulative 
adverse effects on the aquatic environment. Division engineers may also 
suspend or revoke this NWP in watersheds or other geographic areas if 
they find that use of the NWP would result in more than minimal 
cumulative adverse environmental effects.
    One commenter stated the \1/2\-acre limit should be based on farm 
tract and asserted NWP 40 allows for the incremental fill of 
agricultural wetlands. One commenter stated that roadside stands should 
not be considered farm buildings for authorization under this permit. 
Another commenter recommended farm building pads be limited to areas 
that have been in existing, ongoing, agricultural production since at 
least 1980. One commenter remarked concern that this NWP allows fills 
in waters for non-water dependent uses. Another commenter asserted this 
NWP should not authorize farm ponds in wetlands.
    The \1/2\-acre limit applies to a single and complete project. The 
district engineer will determine, after considering the specific 
circumstances for a pre-construction notification, whether the single 
and complete project should be based on a farm tract, property 
boundary, or other appropriate geographic area. Road stands may be 
considered farm buildings for the purposes of this NWP. We do not agree 
that building pads for farm buildings should be limited to existing 
agricultural areas, or that they should be treated differently than 
building pads authorized by NWPs 29 or 39. General permits, including 
NWPs, may authorize activities that are not water-dependent, as long as 
the general permit is issued in accordance with the requirements in the 
404(b)(1) Guidelines at 40 CFR 230.7.
    This NWP is reissued as proposed.
    NWP 41. Reshaping Existing Drainage Ditches. There were no changes 
proposed for this NWP. Several commenters requested adding more terms 
and conditions to this NWP to provide requirements concerning slope 
stability, conducting a natural heritage database search, limiting the 
NWP to reshaping no more than one mile of drainage ditch, and placing 
the excavated material in uplands. One commenter suggested replacing 
the phrase ``for the purpose of improving water quality'' with ``for 
the purpose of improving water quality or public safety.'' This 
commenter also said the NWP should authorize drainage improvements 
beyond the original as-built capacity. One commenter stated that this 
NWP should not be exempt from compensatory mitigation requirements even 
though the activity is designed to improve water quality.
    We do not agree that the suggested additional terms and conditions 
are necessary to ensure that this NWP authorizes ditch reshaping 
activities that have minimal adverse effects on the aquatic 
environment. The drainage ditch slope is more appropriately determined 
on a case-by-case basis. District engineers have the discretion to 
consult state natural heritage databases while reviewing pre-
construction notifications. The authorized activities are intended to 
improve water quality, so there is no need to impose a one mile limit 
or require compensatory mitigation. Reshaping a drainage ditch to 
improve water quality may involve discharging dredged or fill material 
into jurisdictional waters within the ditch. This NWP was originally 
issued to encourage activities that would help improve water quality 
within a watershed, not to provide for public safety. Discharging 
dredged or fill material into waters of the United States to reshape 
existing drainage ditches primarily for the purposes of public safety 
may be authorized by other NWPs, regional general permits, or 
individual permits.
    This NWP is reissued as proposed.
    NWP 42. Recreational Facilities. We proposed to modify this NWP by 
changing the waiver provision for activities resulting in the loss of 
greater than 300 linear feet of intermittent and ephemeral stream bed, 
to clarify that the district engineer will only issue the waiver after 
making a project-specific written determination that the activity will 
result in minimal adverse effects.
    Two commenters said that the \1/2\-acre limit of this NWP does not 
ensure minimal adverse effects, and one of these commenters stated that 
the 300 linear foot limit for stream bed losses does not ensure minimal 
adverse effects either. Several commenters supported the proposed 
waiver provision, since it emphasizes that the appropriate test is that 
the activity results in minimal adverse effects. One commenter 
suggested removing intermittent streams from the waiver provision 
because of the potential for significant impacts to intermittent 
streams.
    The \1/2\-acre limit is the appropriate limit to ensure that the 
activities authorized by this NWP result in minimal adverse effects on 
the aquatic environment. This limit has been in place over several 
permit terms and multiple NWPs and we are not aware of evidence that it 
has allowed projects that do not meet the minimal effects requirement 
to be authorized, nor have commenters provided such evidence. Division 
engineers may regionally condition this NWP to reduce the acreage limit 
or revoke the NWP if its use would result in more than minimal 
individual and cumulative adverse effects on the aquatic environment. 
The 300 linear foot limit for losses of stream bed is also necessary to 
ensure minimal adverse environmental effects. The waiver provision is 
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.
    One commenter suggested adding a condition to this NWP to limit 
fill pathways on public lands to six feet wide, with a maximum length 
of 200 feet, and require open pile or floating boardwalks/docks by 
prohibiting the discharges below the ordinary high water mark of inland 
lakes, streams, or the Great Lakes, or areas that otherwise provide 
fish habitat functions of any kind.
    We do not believe the recommended restrictions are necessary to 
ensure that the NWP authorizes only those activities that result in 
minimal adverse effects on the aquatic environment. Division engineers 
may add regional conditions to this NWP to limit certain activities or 
require specific construction techniques. Division engineers may also 
restrict or prohibit the use of this NWP in certain waters to protect 
important resources, such as fish habitat.
    One commenter supports requiring pre-construction notification for 
all activities authorized by this NWP. One commenter said that the 
activities authorized by this NWP are not similar in nature. One 
commenter suggested adding a condition requiring recreational 
facilities to be integrated into the natural landscape and not 
substantially change pre-construction grades or deviate from natural 
landscape contours. One commenter requested clarification as to when an 
easement will not be required.
    We have retained the requirement that all project proponents who 
want to use this NWP must submit a pre-construction notification. This 
NWP authorizes a specific category of activities (i.e., recreational 
facilities) and complies with the ``similar in nature'' requirement of 
Section 404(e) of the Clean Water Act. We do not agree that it is 
necessary to require

[[Page 10225]]

recreational facilities to be integrated into the natural landscape and 
not substantially change pre-construction grades. The \1/2\-acre and 
300 linear foot limits, as well as the requirement to avoid and 
minimize adverse effects to waters of the United States to the maximum 
extent practicable on the project site (see general condition 23, 
mitigation), help ensure that the NWP authorizes activities that result 
in minimal adverse effects. Conservation easements or other appropriate 
long-term protection instruments will only be required, if necessary, 
for areas that are used to provide compensatory mitigation for 
activities authorized by this NWP.
    This permit is reissued as proposed.
    NWP 43. Stormwater Management Facilities. We proposed to modify 
this NWP by adding low impact development stormwater management 
features to the examples of types of stormwater management facilities 
that may be authorized by this NWP. We also proposed to modify this NWP 
by changing the waiver provision for activities resulting in the loss 
of greater than 300 linear feet of intermittent and ephemeral stream 
bed, to clarify that the district engineer will only issue the waiver 
after making a project-specific written determination that the activity 
will result in minimal adverse effects.
    One commenter expressed support for the proposed modifications. One 
commenter suggested that the acreage limit should be increased from \1/
2\-acre to one acre to increase the utility and usefulness of this NWP. 
Several commenters said this NWP should not authorize new stormwater 
management facilities. One commenter stated that the NWP should only 
authorize the construction of an outfall structure. A couple of 
commenters said that this NWP should be changed to clarify that only 
constructed wetlands may be used to detain, retain, or treat 
stormwater.
    We do not agree that the acreage limit for this NWP should be 
increased from \1/2\-acre to one acre. The \1/2\-acre limit is 
necessary to ensure that this NWP authorizes only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment. The construction of new stormwater management 
facilities may be authorized by this NWP (if all other conditions are 
met), because those activities often result in minimal adverse 
environmental effects and help protect the aquatic environment by 
preventing or reducing the amount of pollutants that enter streams, 
coastal waters, and other aquatic habitats. Stormwater management 
facilities are an important tool for fulfilling the objective of the 
Clean Water Act, by protecting and restoring the physical, chemical, 
and biological integrity of our Nation's waters. The construction of 
stormwater management facilities may involve discharges of dredged or 
fill material into jurisdictional wetlands, so it would not be 
appropriate to limit this NWP to constructed wetlands for the 
detention, retention, or treatment of stormwater.
    We have substantially modified the first paragraph of this NWP to 
clarify how construction and maintenance activities may be authorized 
by this NWP, including the application of the waste treatment system 
exclusion at 33 CFR 328.3(a)(8). Section 328.3(a)(8) states that 
``[w]aste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of'' the Clean Water Act are not 
waters of the United States. The first half of this paragraph provides 
examples of the types of stormwater management facilities that may be 
authorized by this NWP, if the construction of those facilities 
involves discharges of dredged or fill material into waters of the 
United States. The second half of this paragraph states that to the 
extent that a section 404 permit is required, this NWP also authorizes 
discharges of dredged or fill material into waters of the United States 
for the maintenance of stormwater management facilities. Therefore, 
this NWP authorizes maintenance activities involving discharges of 
dredged or fill material if the stormwater management facility is not 
eligible for the waste treatment system exclusion. A section 404 permit 
is not required for a discharge of dredged or fill material into a 
waste treatment system that qualifies for the waste treatment system 
exclusion at 33 CFR 328.3(a)(8).
    Several commenters supported the addition of low impact development 
stormwater management features to the examples of activities authorized 
by this NWP. One commenter said that while the construction of low 
impact development stormwater management features may need a Department 
of the Army permit in some circumstances, the maintenance of low impact 
development stormwater management features does not require a section 
404 permit. This commenter also stated that requiring Department of the 
Army permits for maintenance activities in watersheds that have total 
maximum daily load requirements would result in needless paperwork 
without any environmental benefits. One commenter requested an 
explanation of the value of low impact development stormwater 
management facilities and examples of those facilities that may be 
authorized by this NWP. One commenter expressed concern that areas not 
subject to Clean Water Act jurisdiction, such as swales and upland 
areas holding waters only for short periods of time, may be considered 
to be waters of the United States if they are used for low impact 
development stormwater management features. Several commenters 
requested a definition for ``low impact development stormwater 
features'' in the definitions section. One commenter asked whether 
hybrid or combined bank protection and stormwater management techniques 
are authorized by this NWP or authorized by other NWPs.
    We have modified the text of this NWP to clarify that the 
construction of low impact development integrated management features 
is authorized by this NWP, if the construction involves discharges of 
dredged or fill material into waters of the United States. We have also 
provided examples of the types of low impact development integrated 
management features that may be authorized by this NWP, such as 
bioretention facilities (e.g., rain gardens), vegetated filter strips, 
grassed swales, and infiltration trenches. After these low impact 
development integrated management features are constructed, they may 
not be waters of the United States and subsequent maintenance may not 
require further Department of the Army authorization. The 
jurisdictional status of these features will be determined by district 
engineers on a case-by-case basis, after applying the appropriate 
regulations and guidance. The Corps of Engineers wetland delineation 
manual and the applicable regional supplement will be used to determine 
whether a particular feature is a wetland under the definition at 33 
CFR 328.3(b). Many low impact development integrated management 
features may not have wetland hydrology because they are designed to 
improve water infiltration. By modifying this NWP to make it clear that 
it can be used to authorize discharges of dredged or fill material to 
construct low impact development integrated management features, we are 
providing general permit authorization for activities that will help 
state and local entities comply with the total daily maximum loads 
established for a watershed or watershed. We do not believe it is 
necessary to define the term ``low impact development stormwater 
management features'' in the Definitions section of the NWPs because 
the text of the NWP provides examples of those features. This NWP may 
authorize some minor bank stabilization associated with the 
construction of a stormwater

[[Page 10226]]

management facility. Bank protection may be authorized by this NWP or 
another appropriate NWP.
    One commenter asked whether this NWP authorizes discharges of 
dredged or fill material for the construction of new stormwater 
facilities in intermittent or ephemeral streams that are waters of the 
United States. One commenter recommended prohibiting the construction 
of new stormwater management facilities in intermittent streams to 
avoid impacts to numerous rare and threatened and endangered species. 
Another commenter said this NWP should only authorize activities in 
ephemeral streams.
    We do not believe it is necessary to limit the construction of new 
stormwater management facilities to ephemeral streams. District 
engineers will review pre-construction notifications and determine 
whether the proposed activities will have minimal adverse effects on 
intermittent and ephemeral streams. Activities authorized by this NWP 
must also comply with general condition 18, Endangered Species. State-
listed rare species may be further protected through the establishment 
of regional conditions by division engineers, after a public notice and 
comment process.
    Several commenters objected to allowing the district engineer to 
waive the 300 foot limit for the loss of intermittent or ephemeral 
stream bed. Another commenter suggested increasing the linear limit for 
the loss of stream beds to 500 feet before requiring a waiver, to 
authorize more activities. Several commenters stated the waiver 
provision should be removed and losses of waters of the United States 
should be limited to \1/2\-acre or 300 linear feet of stream bed. 
Another commenter stated that no waivers should be allowed under any 
circumstances. One commenter suggested that waivers for losses of 
intermittent and ephemeral stream beds not be issued until the 
appropriate natural heritage resources database is consulted to inform 
the minimal adverse impact determination.
    We are retaining the provision allowing district engineers to waive 
the 300 linear foot limit for the loss of intermittent and ephemeral 
streams, upon making a written determination that the discharge will 
result in minimal adverse effects. The 300 linear foot limit should not 
be increased to 500 linear feet, to ensure that any loss of perennial 
stream bed results in no more than minimal individual and cumulative 
adverse effects on the aquatic environment. District engineers may use 
available information, including state or local natural heritage 
resources databases, to help make the minimal adverse effects 
determination.
    Some commenters suggested combining the maintenance component of 
this NWP with NWP 3 since both include maintenance activities. Another 
commenter suggested limiting this NWP to authorizing only the 
maintenance of stormwater management facilities constructed and used 
for the primary purpose of providing stormwater detention, retention 
and treatment.
    As discussed above, we have modified this NWP to clarify that Clean 
Water Act Section 404 permits would not be required for maintenance 
activities (or other discharges of dredged or fill materials) involving 
stormwater management facilities that qualify for the waste treatment 
system exclusion at 33 CFR 328.3(a)(8) because these are excluded from 
the definition of waters of the United States. We do not believe it is 
necessary to combine maintenance authorized by NWP 43 with the 
maintenance activities authorized by NWP 3, since NWP 3 authorizes a 
variety of maintenance activities. Some stormwater management 
facilities may have purposes or uses other than stormwater detention, 
retention or treatment, so maintenance should still be authorized by 
this NWP, if a section 404 permit is required and the activity results 
in minimal adverse effects on the aquatic environment.
    One commenter suggested that if a development project is required 
to install stormwater management facilities, the entire development 
should be treated as the ``area of potential effects'' for the purposes 
of compliance with Section 106 of the National Historic Preservation 
Act. One commenter recommended requiring any contaminated materials to 
be properly handled and disposed of.
    The permit area for section 106 compliance will be determined by 
applying the criteria in Appendix C of 33 CFR part 325, the Corps 
Regulatory Program's procedures for the protection of historic 
properties, as well as the interim guidance issued on April 25, 2005, 
and January 31, 2007. In general, as is made clear in these regulations 
and guidance, the Corps does not agree that the area of potential 
effects for an NWP that is needed for a discharge involving one aspect 
of a development project necessarily encompasses the entire project, 
though this may be true in individual cases depending on the facts and 
circumstances. Compliance with general condition 20, Historic 
Properties, is required for activities authorized by this NWP. In 
response to a pre-construction notification, the district engineer may 
add activity-specific conditions to the NWP authorization to protect 
waters of the United States from adverse effects due to contaminated 
materials.
    This NWP is reissued with the modifications discussed above.
    NWP 44. Mining Activities. We proposed to add the 300 linear foot 
limit for the loss of stream bed, which for intermittent and ephemeral 
stream beds can be waived by the district engineer if he or she makes a 
written determination concluding that the activity will result in 
minimal adverse effects.
    One commenter requested the NWP be revoked due to the large scale 
of these activities and their impacts on water quality. One commenter 
said this NWP should only authorize mining activities that have been 
permitted by state agencies. This commenter also stated that this NWP 
should not authorize peat mining or in-stream gravel mining. One 
commenter recommended expanding the categories of applicable waters to 
include tidal waters, since the term ``adjacent'' has not been 
adequately defined.
    The terms and conditions of this NWP, including the addition of the 
300 linear foot limit for the loss of stream bed, help ensure that the 
NWP authorizes only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment. Division 
engineers can regionally condition this NWP to restrict or prohibit its 
use in specific waters or categories of waters, or in particular 
geographic regions. After reviewing a pre-construction notification, 
the district engineer may add activity-specific conditions to the NWP 
authorization to require water quality management measures so that the 
activity causes only minimal degradation of water quality (see general 
condition 25, water quality), or he or she may exercise discretionary 
authority and require an individual permit if it is not possible to 
reduce the adverse effects so that they are no more than minimal. 
Division engineers may also regionally condition this NWP to prohibit 
or restrict peat mining or in-stream gravel mining. We do not agree 
that the NWP should be expanded to authorize discharges of dredged or 
fill material into tidal waters, since such activities may result in 
more than minimal adverse effects on the aquatic environment. The term 
``adjacent'' is defined in the Corps regulations at 33 CFR 328.3(c) and 
is used to identify wetlands that are waters of the United States by 
virtue of being adjacent to jurisdictional waters.

[[Page 10227]]

    Many commenters opposed adding the 300 linear foot limit for the 
loss of stream bed and stated that the 300 linear foot limit should not 
apply to smaller tributaries. One commenter recommended increasing the 
linear foot limit to 500 feet. One commenter said the proposed linear 
foot limit would have the effect of preventing mining of more than one 
million tons of mineable reserves. One commenter stated that waivers to 
the 300 linear foot limit should not be issued without evaluating 
documented natural heritage resources located in the project area.
    As stated above, the 300 linear foot limit is being added to help 
ensure that the NWP authorizes only those activities that result in 
minimal adverse effects on the aquatic environment and other applicable 
public interest review factors. Increasing the linear foot limit for 
the loss of stream bed to 500 feet increases the likelihood that these 
mining activities would result in more than minimal adverse effects and 
therefore not comply with the requirements of Section 404(e) of the 
Clean Water Act. Mining activities that do not qualify for NWP 
authorization may be authorized by individual permits or other general 
permits, such as regional general permits issued by district engineers. 
District engineers will evaluate appropriate information before waiving 
the 300 linear foot for losses of intermittent or ephemeral stream bed, 
which may include state natural heritage resource databases. In areas 
where district engineers have designated state natural heritage sites 
as critical resources, compliance with general condition 22, designated 
critical resource waters will protect those natural heritage sites.
    This NWP is reissued as proposed.
    NWP 45. Repair of Uplands Damaged by Discrete Events. We proposed 
to modify this NWP to clarify that it does not authorize beach 
restoration. We also proposed to change the Note, to make it clear that 
the NWP authorizes discharges of dredged or fill material into waters 
of the United States associated with the restoration of uplands.
    One commenter requested that a \1/2\-acre limit be placed on 
activities authorized under this NWP. One commenter said that 
authorizing activities under this NWP within channel migration zones 
can have more than minimal adverse environmental effects and impair 
stream functions if those activities attempt to force a stream back 
into previously occupied channels. This commenter said the NWP should 
be conditioned to prohibit fills that would attempt to move the stream 
channel to a previous course within the stream channel migration zone. 
One commenter suggested modifying this NWP to limit it to reconfiguring 
the affected area, and not authorize increases to the size of 
structures or fills. Another commenter supported allowing dredging or 
excavation in all waters of the United States under this NWP in 
conjunction with the repair of uplands.
    We do not believe that it is necessary to impose a \1/2\-acre limit 
to this NWP, because it limits the repair of uplands to the contours, 
or ordinary high water mark, that existed before the damage occurred. 
This NWP also limits dredging to the minimum necessary to restore the 
damaged uplands, and does not authorize significant alterations to pre-
event bottom contours of the waterbody. The minor fills authorized by 
this NWP are unlikely to substantially alter stream migration. Because 
this NWP is limited to restoring uplands to pre-event configurations, 
it does not authorize more than minimal changes in the size of 
structures or fills that may be constructed on or near uplands.
    One commenter said that fills should be limited to the post-event 
ordinary high water mark. Another commenter made a similar 
recommendation, but suggested that an exception should be provided in 
cases where there is a need to respond to immediate threats to a 
primary structure or to infrastructure.
    We do not agree that fills should be limited to the post-event 
ordinary high water mark. The purpose of this NWP is to authorize 
discharges of dredged or fill material into waters of the United States 
for the repair of uplands that have been damaged by discrete events and 
have minimal adverse effects on the aquatic environment. In some cases, 
it may not be practicable to limit fills to where the new ordinary high 
water mark is located, in cases where the discrete event changes the 
location of the ordinary high water mark.
    One commenter said that Tribes should be notified to avoid impacts 
to Tribal treaty natural resources and cultural resources. Two 
commenters supported the proposed changes to the Note. One commenter 
stated that all bank stabilization authorized by this NWP must also 
satisfy the terms and conditions of NWP 13.
    Division engineers can regionally condition this NWP to identify 
areas where there are Tribal treaty natural and cultural resources, so 
that consultation can be conducted with those Tribes to ensure that 
impacts to those resources are appropriately considered during review 
of pre-construction notifications. General condition 17, Tribal rights, 
prohibits the impairment of reserved tribal rights such as reserved 
water rights and treaty fishing and hunting rights. We have retained 
the proposed changes to the Note at the end of this NWP. This NWP 
provides separate authorization for discharges of dredged or fill 
material that are necessary to repair uplands that have been damaged by 
discrete events, including the placement of fills necessary to 
stabilize the bank. Unlike NWP 13, this NWP limits bank stabilization 
so that it does not exceed the land contours that existed before the 
damage occurred. Nationwide permit 13 may be used in conjunction with 
this NWP to authorize bank stabilization for restored uplands in cases 
where it is not practicable to limit bank stabilization to the pre-
event ordinary high water mark or contours.
    The NWP is reissued as proposed.
    NWP 46. Discharges in Ditches. We did not propose any changes to 
this NWP. Most commenters asked why this permit was needed since upland 
ditches are not subject to Clean Water Act jurisdiction, and any 
discharges of dredged or fill material into these ditches are exempt by 
statute under Section 404(f) of the Clean Water Act. Some commenters 
noted that the Corps does not assert Clean Water Act jurisdiction over 
many upland ditches and should not attempt to regulate these ditches by 
reissuing this NWP.
    This NWP authorizes discharges of dredged or fill material into a 
specific category of ditches (i.e., those non-tidal ditches that meet 
all four criteria in the first paragraph of the NWP), if those ditches 
have been determined to be waters of the United States. Section 404(f) 
of the Clean Water Act only exempts discharges of dredged or fill 
material for the construction or maintenance of irrigation ditches, or 
the maintenance of drainage ditches, while this NWP authorizes a 
different set of activities which would require a Section 404 permit. 
For example, this NWP authorizes discharges of dredged or fill material 
that may completely fill the specific category of upland ditch 
described in the NWP, if that ditch is determined to be a water of the 
United States after either the Corps or EPA makes a jurisdictional 
determination.
    We recognize that many ditches constructed in uplands are not 
waters of the United States, but there are some ditches constructed in 
uplands that may be determined to be waters of the United States after 
evaluating the specific characteristics of those ditches. The preamble 
to the Corps November 13, 1986, final rule states the non-tidal 
drainage and irrigation ditches

[[Page 10228]]

excavated on dry land are generally not considered to be waters of the 
United States, but the Corps and EPA reserve the right on a case-by-
case basis to determine whether a particular waterbody is a water of 
the United States (see 51 FR 41217). Joint guidance issued in December 
2008 by EPA and the Corps provides additional clarification as to when 
ditches are and are not considered to be waters of the United States 
(see http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapanos120208.pdf; p. 12).
    Some commenters said there are impacts to upland ditches that could 
impair water quality downstream and that compensatory mitigation should 
be required to minimize adverse effects caused by activities authorized 
by this NWP. One commenter recommended that district engineers evaluate 
impacts to natural heritage resources during their review of pre-
construction notifications.
    For those activities authorized by this NWP, the district engineer 
will review the pre-construction notification and determine whether the 
activity results in only minimal adverse effects, including whether 
compensatory mitigation is necessary to ensure that the authorized 
activity results in minimal adverse effects on the aquatic environment, 
including water quality. During the review of a pre-construction 
notification, the district engineer may consult natural heritage 
resource databases to more effectively evaluate the potential adverse 
effects on the aquatic environment.
    This NWP is reissued as proposed.
    NWP 47. Pipeline Safety Program Designated Time Sensitive 
Inspections and Repairs. We proposed to not reauthorize this NWP 
because it was issued in 2007 in reliance on the development of the 
Pipeline Repair and Environmental Guidance System (PREGS) by the 
Pipeline and Hazardous Materials Safety Administration. Since PREGS was 
not developed and deployed, and paragraph (h) of the NWP required 
permittees to use PREGS to submit post-construction reports, no 
activity could be authorized by NWP 47.
    Two commenters asked why this NWP was not proposed to be reissued. 
Three commenters agreed with allowing the NWP to expire and supported 
the Corps position that designated time sensitive inspections and 
repairs can be authorized under NWP 3, Maintenance and NWP 12, Utility 
Line Activities. One commenter said that there should be an NWP to 
authorize emergency repair activities to fix natural gas pipeline 
leaks, pressure malfunctions, natural disaster damage, terrorist 
threats, or other events that pose a danger to public safety. One 
commenter suggested issuing a new NWP to authorize activities licensed 
by the Federal Energy Regulatory Commission's blanket certificate 
program.
    Existing NWPs, such as NWPs 3 and 12, may be used to authorize 
discharges of dredged or fill material or structures or work in 
navigable waters of the United States associated with pipeline 
inspections and repairs. Some of these activities do not require pre-
construction notification to qualify for NWP authorization. There are 
other approaches available, such as emergency permitting procedures, to 
allow emergency repair activities that do not qualify for general 
permit authorization to proceed if there is ``an unacceptable hazard to 
life, a significant loss of property, or an immediate, unforeseen, and 
significant economic hardship'' (see 33 CFR 325.2(e)(4)). We do not 
believe it is necessary to develop a new NWP to authorize activities 
that are granted blanket certificates by the Federal Energy Regulatory 
Commission. Many of these activities may be authorized by existing 
NWPs, such as NWPs 3 and 12.
    This NWP is not reissued.
    NWP 48. Commercial Shellfish Aquaculture Activities. We proposed to 
modify this NWP by removing the reporting requirement, which applied to 
all activities that did not require pre-construction notification. We 
also proposed to add the information previously required in that report 
to the PCN information requirements. This information includes: A map 
showing the boundaries of the project area, with latitude and longitude 
coordinates for each corner of the project area; the name(s) of the 
cultivated species; and whether canopy predator nets are being used. In 
addition, we proposed to remove the pre-construction notification 
requirement for changes in species cultivated, as long as those species 
had been previously cultivated in the waterbody. We proposed to modify 
this NWP to authorize activities associated with the expansion of 
existing commercial shellfish aquaculture operations. We requested 
comments on modifying this NWP or issuing a new NWP to authorize new 
commercial shellfish aquaculture activities.
    Many commenters said the NWP should be reissued, and recommended 
many changes. Several commenters stated that this NWP should not be 
reissued. Most commenters expressed support for removing the reporting 
requirements for all activities that did not require pre-construction 
notification, stating that the paperwork was unnecessary given the 
current regulation of the industry by other entities, such as state and 
local governments. One commenter said that the reporting requirements 
should be maintained to ensure protection of resources. Other 
commenters suggested that pre-construction notification should be 
required for all activities. Several commenters said that the NWP 
should only authorize maintenance activities. One commenter stated that 
shellfish aquaculture methods are sufficiently different for the 
species cultivated that issuing a single NWP to authorize these 
activities is inappropriate. Another commenter said that all commercial 
shellfish aquaculture activities should be authorized under one NWP. 
Two commenters stated that the NWP should only authorize harvesting 
that occurs by hand. One commenter stated that these activities may 
impact tribal fishery access and fishing rights, and coordination with 
the affected tribes should be required.
    We have reissued this NWP and made several changes. Properly sited, 
operated, and maintained commercial shellfish aquaculture activities 
support populations of shellfish that provide important ecological 
functions and services for coastal waters, and should be authorized by 
a single NWP. We have removed the reporting requirements for this NWP 
and substantially reduced the number of pre-construction notification 
thresholds. Division engineers may regionally condition this NWP to 
establish additional pre-construction notification thresholds if 
necessary to ensure that this NWP authorizes only those activities that 
have minimal adverse effects on the aquatic environment. We do not 
agree that pre-construction notification should be required for all 
activities authorized by this NWP, because these activities are 
regulated by a number of other government agencies, especially at the 
federal and state government levels. In addition, the discharges of 
dredged or fill material into waters of the United States authorized by 
this NWP will result in minimal adverse environmental effects to the 
environmental criteria established under the Clean Water Act. The 
shellfish populations supported by the activities authorized by this 
NWP help support the objective of the Clean Water Act because they 
improve water quality through the conversion of nutrients into biomass 
(i.e., shellfish growth) and the

[[Page 10229]]

removal of suspended materials through filter feeding. Commercially 
grown shellfish also provide some habitat functions for the aquatic 
environment. Impacts to submerged aquatic vegetation will, in many 
cases, be evaluated through the pre-construction notification review 
process. For commercial shellfish aquaculture activities in new project 
areas, adverse effects to submerged aquatic vegetation will be minimal 
because of the \1/2\-acre limit. Impacts to coastal aquatic habitat and 
species of concern in those habitats are more appropriately addressed 
through consultation conducted under the Essential Fish Habitat 
provisions of the Magnuson-Stevens Fishery Conservation and Management 
Act and/or Section 7 of the Endangered Species Act.
    We do not agree that the NWP should be limited to hand harvesting 
activities. We have retained the pre-construction notification 
requirement for activities involving dredge harvesting, tilling, or 
harrowing in areas inhabited by submerged aquatic vegetation. General 
condition 17, tribal rights, states that NWP activities may not impair 
reserved tribal rights, including treaty fishing and hunting rights. In 
addition, division engineers may regionally condition this NWP to 
identify areas where Tribes must be notified of these activities and 
government-to-government consultation conducted to avoid or minimize 
impacts to tribal fishery access and fishing rights.
    One commenter said that the restoration of indigenous species would 
be prevented if cultivation was limited to only those species that were 
previously commercially cultivated. Another commenter recommended 
requiring pre-construction notification if there were a proposed change 
in species cultivated that was not part of a state-approved list. Some 
commenters suggested that pre-construction notification should not be 
required for changes in harvesting methods. Another commenter said that 
pre-construction notification should be required if the culture method 
changed from bottom culture to floating or suspended culture to allow 
district engineers to evaluate potential navigation issues. One 
commenter indicated that the NWP should authorize demonstration 
projects less than one acre in size and another said that non-
commercial shellfish aquaculture activities should be authorized, since 
states, local governments, and non-governmental organizations engage in 
recreational and commercial aquaculture. One commenter recommended 
adding a provision that would require the permittee to implement 
measures to prevent the spread of aquatic nuisance species, such as 
prohibiting the transfer of materials used for commercial shellfish 
aquaculture activities from one project site to another unless 
appropriate measures have been taken to ensure that those materials are 
free of aquatic nuisance species. This commenter said a note should be 
added to the NWP, to prohibit the transfer of equipment used in 
commercial shellfish aquaculture activities from one waterbody to 
another waterbody, unless that equipment has been allowed to dry out 
for a minimum of 90 days or treated in accordance with a regional 
aquatic nuisance control plan, to prevent the introduction of aquatic 
nuisance species into the other waterbody.
    We have modified this NWP to provide more flexibility in the 
species cultivated, specifically, to allow the cultivation of 
nonindigenous species as long as those species have been previously 
cultivated in the waterbody. We recognize that there has been 
commercial production of nonindigenous species over many years in 
certain waterbodies, and activities requiring Department of the Army 
authorization associated with those commercial operations should be 
authorized by this NWP. We have retained the prohibitions against 
cultivating aquatic nuisance species defined by the Nonindigenous 
Aquatic Nuisance Prevention and Control Act of 1990. We have also added 
Note 2 to the NWP, to reduce the risk of introducing aquatic nuisance 
species by requiring treatment of materials taken from one waterbody to 
another in accordance with the applicable regional aquatic nuisance 
species management plan. Division engineers may add regional conditions 
to the NWP to make permittees aware of the regional aquatic nuisance 
species management plan that may be applicable to NWP 48 activities.
    We agree that pre-construction notification should not be required 
for changes in harvesting methods because harvesting methods have 
temporary impacts and result in minimal adverse effects. A possible 
exception is dredge harvesting in areas inhabited by submerged aquatic 
vegetation, which still requires pre-construction notification. We also 
agree that pre-construction notification should be required if the 
grower proposes to change from bottom culture to floating or suspended 
culture in a project area, or if it is an activity in a new project 
area that requires the installation and use of floating or suspended 
gear, so that effects to navigation can be evaluated. This NWP 
authorizes commercial shellfish aquaculture activities undertaken by 
states, local governments, and non-governmental organizations. 
Shellfish seeding activities to improve shellfish populations may be 
authorized by NWP 27. Small recreational shellfish aquaculture 
activities may be authorized by other applicable NWPs, such as NWP 4. 
Other recreational shellfish aquaculture activities may be authorized 
by regional general permits or individual permits. Restoration 
aquaculture activities may be authorized by NWP 27.
    One commenter stated that the structures and fill activities 
authorized by the NWP were too broad and should be refined. This 
commenter recommended prohibiting the long-term use of trays if 
sediment is compacted and diversity is diminished. One commenter said 
that structures and fill should be limited to shell spat only, while 
another commenter stated that shell planting should be allowed on any 
size parcel without pre-construction notification.
    The structures and fills authorized by this NWP are limited to 
those necessary to conduct commercial shellfish aquaculture activities. 
We have retained the provision that states that the NWP does not 
authorize attendant features such as docks, piers, boat ramps, 
stockpiles or staging areas, or the deposition of shell material back 
into waters of the United States as waste. We have removed the pre-
construction notification threshold for commercial shellfish 
aquaculture activities that are more than 100 acres in size, because we 
do not believe it is necessary to require pre-construction notification 
for existing operations with a valid lease, permit, or other 
appropriate instrument that has been approved by the appropriate state 
or local government agency, unless the activity triggers any of the 
pre-construction notification thresholds.
    One commenter requested changes to the definition of shell seeding, 
citing concerns over the use of potentially environmentally damaging 
materials. Another commenter supported the use of terms such as 
``suitable substrate'' and ``appropriate materials'' due to the 
decreasing availability of shell cultch and new research and 
development regarding materials. One commenter said that use of the 
term ``submerged aquatic vegetation'' allowed for the destruction of 
eelgrass, because eelgrass is often not inundated with tidal waters. 
One commenter asked whether traditional oyster culture practices were 
of special concern.
    The definition of the term ``shellfish seeding'' in the Definitions 
section of

[[Page 10230]]

the NWP provides examples of appropriate materials that may be used for 
shellfish seeding activities. Through the issuance of regional 
conditions, division engineers can restrict or prohibit the use of 
certain materials for shellfish seeding. In response to a pre-
construction notification, district engineers may add activity-specific 
conditions to an NWP authorization to prohibit the use of certain 
materials for shellfish seeding. Eelgrass is commonly considered to be 
a species of submerged aquatic vegetation and we intend it to be 
covered by the provisions regarding submerged aquatic vegetation, 
regardless of whether it is fully submerged in all tidal conditions or 
not.
    Many commenters requested clarification as to when pre-construction 
notification is required and what constitutes a project area for the 
purposes of this NWP. Several commenters recommended that pre-
construction notifications should only be required once and not for 
each subsequent reissuance of this NWP if the commercial shellfish 
aquaculture operation has not changed. One commenter asked if the lease 
holder is required to provide pre-construction notifications annually 
if the lease covers an area greater than 100 acres. One commenter 
inquired whether pre-construction notification is required when the 
operator is only working on 30 acres of a 200-acre project site. One 
commenter said that multiple pre-construction notifications should not 
be required from a lease holder that has multiple 100-acre leases; 
instead, one pre-construction notification should cover all those 
leases.
    We have reduced the number of pre-construction notification 
thresholds in this NWP. The pre-construction notification thresholds in 
this NWP focus on those activities that should be reviewed by district 
engineers to: (1) Ensure that floating or suspended aquaculture 
facilities do not cause more than minimal adverse effects on navigation 
or, (2) ensure that both cultivating species that have not been 
previously cultivated in the waterbody and dredge harvesting, tilling, 
or harrowing in areas of submerged aquatic vegetation do not cause more 
than minimal adverse effects on the aquatic environment.
    To support our objective to be more consistent with state and local 
agencies that regulate commercial shellfish aquaculture activities, we 
have redefined project area so that it is based on leases or permits 
issued by an appropriate state or local government agency that is 
responsible for allocating subtidal or intertidal lands for commercial 
shellfish production. The project area may also be based on rights to 
conduct shellfish aquaculture that are established by treaty, such as 
treaties executed between the United States Government and Indian 
Tribes. Project area may also be identified through an easement, lease, 
deed, or contract which establishes an enforceable property interest to 
conduct aquaculture activities on subtidal or intertidal lands.
    We have removed the pre-construction notification requirement for 
relocating existing operations into portions of the project area not 
previously used for aquaculture activities, since the permit or lease 
issued by the state or local government agency has already authorized 
that area for use in commercial shellfish aquaculture. There is no need 
to address expansions in this NWP if the proposed expansions are within 
the project area authorized by the state or local government lease or 
other appropriate instrument. For example, pre-construction 
notification is not required if an operator who is only working on 30 
acres of a 200-acre project area decides to conduct operations beyond 
those 30 acres within the 200 acre project area.
    We have removed the pre-construction notification threshold for 
project areas greater than 100 acres. Since we have limited the pre-
construction notification thresholds to focus on activities that may 
adversely affect submerged aquatic vegetation and changes in operations 
that may adversely affect navigation or involve species not previously 
cultivated in the waterbody, most on-going activities will not require 
pre-construction notification, thereby substantially decreasing the 
paperwork burden on current commercial shellfish aquaculture operators. 
The lease holder is not required to provide a pre-construction 
notification annually no matter what the size of the project area as 
long as the lease holder has a valid lease, permit, or other 
appropriate instrument that has been approved by the appropriate state 
or local government agency for the project area, and none of the pre-
construction notification thresholds are triggered. For example, pre-
construction notification is not required if the lease holder is only 
working within an existing authorized 200-acre project area no matter 
how much or little of that area is cultivated. However, if the lease 
holder proposes to cultivate a species of oyster in the 200-acre 
project area not currently present in the waterbody, pre-construction 
notification would be required. The activities also do not require pre-
construction notification unless the activities involve dredge 
harvesting, tilling, or harrowing in areas of submerged aquatic 
vegetation. If the lease holder's operations within the 200-acre 
project area change from one on-bottom technique to another on-bottom 
technique, pre-construction notification is not required. However, if 
the operations are proposed to change from an on-bottom culture method 
to a floating or suspended culture method, pre-construction 
notification is required. Lastly, if an operator obtains a lease for a 
new project area and wishes to conduct any commercial shellfish 
aquaculture activities in the new project area, pre-construction 
notification is required.
    One commenter said that requiring pre-construction notification for 
aquaculture relocation and expansion is unnecessary if the area is 
already leased but transferred to another owner. Another commenter 
recommended that any NWP authorizations should still be valid when the 
lease is transferred to another operator and use has not changed. One 
commenter stated that pre-construction notification should not be 
required for expansions into newly leased areas since the site 
conditions are usually the same.
    Pre-construction notification is not required for expansions of 
commercial shellfish activities as long as the expansion occurs within 
the project area specified by an permit, lease, or other instrument 
issued by the appropriate state or local agency, and as long as none of 
the pre-construction notification thresholds are triggered. This would 
apply to an activity in a new location within the project area, or to 
an activity that would utilize a larger acreage of the project area, as 
long as none of those activities require pre-construction notification. 
If an activity is proposed by an operator in a new project area, 
however, pre-construction notification is required. An NWP verification 
can be transferred to a new project proponent, if he or she has 
obtained an interest in the subtidal or intertidal lands, provided 
appropriate procedures are followed for the transfer of the NWP 
verification (see general condition 29, transfer of nationwide permit 
verifications).
    One commenter asked whether or not an NWP verification can be 
issued prior to a state issuing a lease. Another commenter said that 
NWP 48 should be delegated to the states who issue leases to reduce 
duplicative paperwork. One commenter stated that pre-construction 
notification should not be required when a state already evaluates 
impacts to submerged aquatic vegetation prior to

[[Page 10231]]

granting leases. Another commenter said that certain states do not 
issue leases in areas with submerged aquatic vegetation, so it is not 
necessary for the Corps to address that issue.
    The district engineer may issue an NWP verification before the 
state makes its decision on a lease application. It is necessary to 
respond to a complete pre-construction notification within 45 days to 
retain the authority to add activity-specific conditions, which would 
ensure that the NWP activity results in minimal adverse effects on the 
aquatic environment. Since there is not consistent regulation of 
commercial shellfish aquaculture activities among all of the states, we 
do not agree that certain Federal interests, such as navigation and 
impacts to special aquatic sites, should be delegated to the states. In 
evaluating a pre-construction notification triggered by potential 
impacts to submerged aquatic vegetation, the district engineer would 
consider any evaluation of such impacts that had been previously 
conducted by the state if this is submitted with the PCN.
    Many commenters expressed concerns regarding impacts to species 
protected under the Endangered Species Act, designated critical 
habitat, and essential fish habitat. One commenter asked if compliance 
with the Endangered Species Act was required for both existing and new 
activities. Another recommended that a detailed eelgrass, macroalgae, 
and forage fish survey should be required for each pre-construction 
notification. One commenter stated that NWP authorization should not be 
granted in areas adjacent to forage fish or critical habitat.
    Activities authorized by this NWP must comply with general 
condition 18, endangered species. Any new or existing activity that 
involves discharges of dredged or fill material or structures or work 
in navigable waters of the United States that might affect listed 
species or designated critical habitat require pre-construction 
notification to the district engineer, so that Section 7 consultation 
can be conducted. We do not agree that pre-construction notifications 
should include surveys for eelgrass, microalgae, or forage fishes. The 
district engineer may request additional information from the project 
sponsor if needed to conduct Section 7 consultation. An activity may be 
authorized in critical habitat if a section 7 biological opinion is 
issued and impacts to critical habitat are authorized.
    One commenter recommended that the Corps work closely with the 
National Oceanic and Atmospheric Administration to streamline the 
review and approval of aquaculture projects. Some commenters said that 
the commercial shellfish aquaculture industry is not sufficiently 
regulated at the local, state, or federal level. One commenter said 
that enforceable conditions need to be added to NWP 48 authorizations 
to protect the aquatic environment. One commenter recommended 
implementing a regional ecosystem-based management approach.
    We have worked closely with the National Oceanic and Atmospheric 
Administration and other Federal agencies to develop this NWP, and we 
disagree that there is not already sufficient government oversight of 
these activities at the various levels of government. In response to a 
pre-construction notification, the district engineer may add activity-
specific conditions to the NWP authorization to ensure that the 
authorized activity results in minimal adverse effects on the aquatic 
environment, individually and cumulatively. A regional ecosystem-based 
management approach is more appropriately undertaken by Corps districts 
and interested Federal, State, and local government agencies, not at 
the national level.
    Many commenters expressed concern regarding the environmental 
impacts associated with expansions of commercial shellfish aquaculture 
activities and for new activities. One commenter said that expansion 
proposals should not be reviewed as restoration activities since non-
native species are a serious threat. Several commenters stated that the 
environmental benefits do not offset the environmental impacts, 
introduction of invasive species, impacts to native species such as 
flatfish and other sandy bottom species, reduction of species 
diversity, elimination of native animal and plant species, harassment 
and destruction of migrating birds, and the introduction of plastics. 
Other commenters expressed concern regarding impacts from geoduck 
cultivation and harvesting on the environment as well as on wild 
geoduck populations, and the cultivation and harvesting of other non-
native species. Two commenters stated that geoduck cultivation and 
harvesting has only minimal impacts.
    When properly sited, operated, and maintained, commercial shellfish 
aquaculture activities generally result in minimal adverse effects on 
the aquatic environment and in many cases provide environmental 
benefits by improving water quality and wildlife habitat, and providing 
nutrient cycling functions. These activities are subjected to an 
extensive amount of regulation at the Federal and state government 
levels, and often the local government level. The introduction of 
invasive species can occur through many mechanisms, and the types of 
species approved for commercial aquaculture activities are regulated. 
This NWP does not authorize discharges of dredged or fill material or 
structures or work in navigable waters of the United States associated 
with the cultivation of nonindigenous species that have not been 
previously cultivated in the waterbody or the cultivation of aquatic 
nuisance species as defined in the Nonindigenous Aquatic Nuisance 
Prevention and Control Act of 1990. Furthermore, division engineers may 
add regional conditions to the NWP to require permittees to use 
specific practices that will prevent the spread of aquatic nuisance 
species. Such measures may vary, depending on the species of concern 
and which techniques would be the most effective means to prevent the 
spread of such species. Adverse effects that may result from geoduck 
cultivation are more appropriately addressed by Corps districts, since 
this activity is limited in geographic scope. Division engineers may 
regionally condition this NWP to restrict or prohibit its use to 
authorize discharges of dredged or fill material into waters of the 
United States or structures or work in navigable waters of the United 
States associated with geoduck production.
    Several commenters stated that the expansion of commercial 
shellfish aquaculture activities will result in more than minimal 
cumulative adverse effects and should not be authorized by NWP. One 
commenter said that all activities authorized by this NWP should 
require reporting to assess cumulative effects. Another commenter 
suggested that cumulative effects on water quality should be evaluated 
for water bodies with multiple aquaculture facilities.
    As stated above, commercial shellfish aquaculture activities 
provide habitat, water quality, and nutrient cycling functions and when 
properly sited, operated, and maintained are unlikely to result in more 
than minimal cumulative adverse effects on the aquatic environment. 
Division engineers may restrict or prohibit use of this NWP in 
geographic regions or specific waterbodies where more than minimal 
cumulative adverse effects may occur.
    One commenter stated that shellfish aquaculture activities have 
economic impacts that were not sufficiently addressed in the draft 
decision documents. For example, county and

[[Page 10232]]

state health agencies are required to regulate water quality, which 
costs taxpayer money. This commenter said that changes to aesthetics 
associated with expansion of these activities, such as noise, odor, and 
viewshed impacts should also be considered. Impacts to recreational 
uses of the affected waterbodies could occur if expansions greater than 
100 acres in size are authorized. This commenter also said that new and 
expanded operations should not be proposed in national parks or 
historic monuments, but existing operations should be allowed to 
continue. The commenter also stated that any projects in river delta 
regions should be carefully evaluated due to the sensitive nature of 
these brackish environments.
    The draft decision documents briefly discuss economics as one of 
the public interest review factors that are considered before the Corps 
issues a permit, including a general permit. Shellfish aquaculture 
activities, in general, help improve water quality because many of the 
commercially cultivated species are filter feeders that remove 
nutrients and suspended materials from the water column. By removing 
nutrients, eutrophication and similar water quality problems are 
lessened. Water quality benefits provided by commercially grown 
shellfish help reduce costs of remediating local water quality 
problems. Commercial shellfish aquaculture activities have minimal 
adverse effects to aesthetics, and are likely to result in little 
change in local baseline levels of noise, odor, or views when compared 
to other waterfront uses in coastal residential areas, such as private 
and commercial boats, as well as the piers, wharves, marinas, and 
anchorage or mooring areas where those vessels are kept. Coastal areas 
are used by a wide variety of people. Effects on recreational uses of 
the waterbody should also be considered during the review of specific 
commercial shellfish aquaculture activities. Division engineers may 
regionally condition this NWP to restrict or prohibit its use to 
authorize new project areas and/or new activities in existing project 
areas in national parks or in the vicinity of historic monuments. The 
protection of waters near river deltas or other categories of waters is 
more appropriately accomplished through regional conditions imposed by 
division engineers.
    One commenter stated that because commercial shellfish aquaculture 
may be limited by farm runoff, increasing production could require 
farmland to cease in operation. Another commenter stated that shellfish 
farming is a good gauge of water quality in an area since poor water 
quality necessitates closure of shellfish farms. In contrast, another 
commenter said the potential for aquaculture operations to harvest 
continuously as farm size increased would result in permanently 
suspended particulates and increased turbidity which would damage 
ecosystems.
    Changes in farming operations that may be related to commercial 
shellfish aquaculture activities in nearby waters is outside of the 
Corps regulatory authority. Such issues are more appropriately 
addressed by state or local governments, who have the primary 
responsibility for land use decisions. We recognize that commercial 
shellfish aquaculture can help improve water quality. Harvesting 
operations may increase turbidity, but we believe such impacts are 
temporary and minor.
    We received many comments in response to our proposal to consider 
issuing a new NWP or modifying NWP 48 to authorize new commercial 
shellfish aquaculture activities. Many commenters supported modifying 
NWP 48 to authorize new activities, and suggested terms and conditions. 
One commenter recommended limiting new activities to ten acres or less. 
One commenter stated that there should be no limits on new activities 
because shellfish aquaculture has only minimal, short-term adverse 
environmental impacts, and the shellfish themselves provide valuable 
ecological services. Two commenters stated that all new shellfish 
aquaculture activities except floating culture should be authorized 
under the NWP, because floating facilities have potential to impact 
navigation. One commenter said limitations on new activities should be 
imposed on NWP 48 and reconsidered when the proposal to reissue the 
NWPs is developed in 2016. Other commenters said that new activities 
should not be authorized by NWP because of their environmental impacts. 
Another commenter stated that new activities should not be authorized 
by NWP unless bottom culture methods are used (except for grow-out 
bags), harvesting is done by hand, and only native species are 
cultivated. One commenter stated that baseline habitat assessments 
should be provided and no operations should occur within 180 feet of 
marine vegetation, eelgrass, or sand dollar beds.
    We are modifying NWP 48 to authorize commercial shellfish 
aquaculture activities in new project areas, provided the project 
proponent obtains a valid authorization (e.g., a lease or permit from 
the appropriate state or local government agency responsible for 
granting such leases or permits) and the activity will not directly 
affect more than \1/2\-acre of submerged aquatic vegetation beds. Pre-
construction notification is required for all commercial shellfish 
aquaculture activities in new project areas. Pre-construction 
notification is also required for activities in a project area if they 
involve dredge harvesting, tilling, or harrowing in areas inhabited by 
submerged aquatic vegetation or if the activities involve the change 
from bottom culture to floating or suspended culture in order to assess 
potential impacts to navigation. In addition, general condition 14, 
proper maintenance, requires the permittee to properly maintain any 
authorized structure or fill. Therefore, any authorized commercial 
shellfish aquaculture activity and its associated equipment shall be 
properly maintained so as to not pose a hazard to navigation. The pre-
construction notification thresholds will provide an opportunity for 
district engineers to evaluate the potential adverse effects to 
navigation and vegetated shallows, conservation, and other applicable 
public interest review factors, and ensure that those adverse effects 
are minimal. We agree that commercial shellfish aquaculture activities 
can provide important functions and services to the aquatic environment 
and should be authorized by NWP, with appropriate notification 
thresholds and limits. Division engineers may regionally condition this 
NWP to restrict or prohibit its use in specific waters or geographic 
areas, if there are concerns that these activities may have more than 
minimal adverse effects on certain species or specific types of aquatic 
resources.
    This NWP is reissued with the modifications discussed above.
    NWP 49. Coal Remining Activities. We proposed to clarify how the 40 
percent of newly mined area is determined. We also proposed to modify 
the pre-construction notification provision to require the prospective 
permittee to submit documentation describing how the overall mine plan 
will result in a net increase in aquatic resource functions.
    Several commenters supported the reissuance of NWP 49 and said no 
restrictions should be imposed because remining permits are one of the 
most significant tools to alleviate the environmental effects of past 
mining activities. Many commenters said this NWP should not be 
reissued. Some of these commenters stated that these activities result 
in more than minimal cumulative adverse effects. Many commenters 
objected to the lack of

[[Page 10233]]

limits for filling stream channels and said this NWP should not 
authorize the construction of valley fills or refuse fills. Other 
commenters stated that the functional increase associated with re-
mining will still be insufficient to offset adverse effects of filling 
stream beds and that stream mitigation will not effectively replace 
lost stream functions.
    We believe authorizing remining of an unreclaimed site and 
requiring actions to restore unreclaimed areas is one of the most 
effective ways to reverse degraded water quality in a watershed. 
Therefore, we have not imposed any new limits or restrictions on this 
NWP. All activities authorized by this NWP must result in net increases 
in aquatic resource functions, which will help manage cumulative 
effects on a watershed basis. Cumulative effects assessments have 
revealed the reduction in acid mine drainage and/or sedimentation in 
downstream segments of stream channels has resulted in functional 
improvements in many watersheds. The states of Ohio, Pennsylvania, 
Virginia, and West Virginia frequently use remining activities to 
reduce acid mine drainage and sedimentation and have data to 
demonstrate these improvements.
    We do not believe this permit should have linear foot or acreage 
limits, since this NWP authorizes discharges of dredged or fill 
material into waters of the United States to reclaim previously mined 
sites that were unreclaimed, abandoned, forfeited, and typically 
exhibit poor water quality and present safety hazards. These 
unreclaimed mines may have unreclaimed highwalls, unvegetated mine 
spoil, disconnected stream segments, and/or pit impoundments. We, as 
well as other state and federal agencies, recognize that remining and 
reclaiming these areas is one of the most successful means for 
improving water quality, because these activities reduce sedimentation 
and acid mine drainage. Due to advances in mining technology and 
equipment, it is now economically viable to remove coal from these 
unreclaimed and abandoned mine sites. These sites can be combined with 
adjacent unmined areas to develop a project that is economically 
viable. In many cases the net result of combining remining of a 
previously mined site with new surface coal mining activities in 
adjacent areas is to facilitate reclamation of the older mine site and 
reduce acid mine drainage and sediment from the older mine site to 
downstream stream segments. Furthermore, this NWP provides an incentive 
to remine degraded areas, similar to the 1987 Rahall Amendments to the 
Clean Water Act, which enables mine operators to apply for the U.S. 
Environmental Protection Agency's modified effluent limits developed 
specifically for remining projects.
    Project proponents who want to use this NWP must submit pre-
construction notifications. The pre-construction notification describes 
how the overall mining plan will result in a net increase in aquatic 
resource functions. If there is an appropriate functional assessment 
protocol available for the types of aquatic resources in that 
geographic area, project proponents are encouraged to use that 
functional assessment protocol to demonstrate how the activity will 
result in a net increase in aquatic resource functions. The description 
of the proposed project required by paragraph (b)(3) of general 
condition 31 should describe the restoration that will take place on 
the project site. District engineers may add activity-specific 
conditions to this NWP to require more detailed restoration plans prior 
to discharging dredged or fill material into waters of the United 
States, as well as monitoring plans that will be used to assess whether 
the remining and associated reclamation activities are resulting in net 
increases in aquatic resource functions. Supplemental compensatory 
mitigation may be required in some instances, such as the 
implementation of mitigation projects near the project site, to remove 
or reduce causes of aquatic resource impairment and ensure that the 
overall activity not only results in minimal individual and cumulative 
adverse effects on the aquatic environment but in a net increase in 
aquatic resource functions, as required by this NWP.
    Several commenters indicated the general public should have the 
right to comment on the proposal before the district engineer issues 
the NWP verification. One commenter said all activities associated with 
remining should require individual permits and another commenter 
objected to combining unmined lands required for restoration with 
previously mined lands because that would categorize unmined land as 
unreclaimed land, and result in additional adverse environmental 
effects. One commenter stated that slurry impoundments should not be 
authorized by this NWP.
    We believe these activities are appropriate for general permit 
authorization and should not require a public notice and comment 
process. District engineers may assert discretionary authority and 
require an individual permit for proposed activities if they believe 
those activities will result in more than minimal adverse effects on 
the aquatic environment. It is appropriate to authorize discharges of 
dredged or fill material into waters of the United States for some new 
mining activities, to provide an incentive to restore unreclaimed mine 
lands, and provide net increases in aquatic resource functions. Impacts 
to the newly mined area would not be categorized as remining. Adverse 
effects to waters of the United States associated with the new mining 
would be subject to the general condition 23, mitigation, and the 
district engineer may add conditions to the NWP authorization to 
require mitigation located near the project site or out-of-kind 
mitigation to compensate for losses of aquatic resource functions. 
Typical surface coal mining projects, including remining, do not 
include slurry impoundments, as these impoundments are typically 
associated with the wastewater resulting from coal processing plants. 
This NWP does not authorize the construction of coal processing plants.
    Many commenters said the Corps is making the review process 
associated with NWP 49 more onerous, which will decrease the utility of 
the NWP, and should focus on the environmental benefits that can be 
realized from this nationwide permit.
    The proposed changes to this NWP, which we are adopting, do not 
make it more difficult to use NWP 49. The requirement to provide 
information with the pre-construction notification to explain how the 
overall activity will result in net increases in aquatic resource 
functions is necessary to ensure compliance with the terms and 
conditions of the NWP. Clarification of how to apply the 40 percent 
provision to determine how much new area could be mined will provide 
consistency in implementation. For example, a site may be proposed to 
be remined under this NWP. If 30 acres of the site has been previously 
mined and is proposed to be remined, and 30 acres of the site is 
unmined and is necessary to make it economically feasible to reclaim 
the remined area, then 40% of the combined acreage of the remined and 
reclaimed areas, or 40% of 60 acres which equals 24 acres, can be newly 
mined. In another example, if you have a 1,000-acre site, and 600 acres 
are affected by previously unreclaimed mining activities and 200 acres 
are needed to reclaim the 600 acres, then 40% of 800 acres (the 
summation of the previously unreclaimed mining activities site and the 
site needed to reclaim the previously mined site), or 320 acres may be 
newly mined. As there are only 200 acres remaining at the 1,000-acre 
site, those 200 acres may be

[[Page 10234]]

authorized under NWP 49 for newly mined activities.
    One commenter said they did not understand the rationale for 
establishing the threshold for newly mined areas at 40 percent, if 
removing the small amount of remaining coal reserves will be far more 
attractive to coal mine operators if the percentage was increased to 
allow mining on larger areas of unmined lands. One commenter said the 
40 percent limitation becomes an obstacle when the remaining coal seam 
is deep within the hillside and large amounts of overburden require 
removal. This commenter suggested increasing the limit for newly mined 
areas to 50 or 60 percent to encourage more restoration of unreclaimed 
areas. The commenter recommended adding a provision allowing district 
engineers to waive the 40 percent threshold in certain situations, such 
as when the operator receives an approved pollution abatement plan with 
best management practices, the remining activity is located in a 
completed Acid Mine Drainage Abatement Treatment watershed area, and 
watersheds with established total daily maximum loads. Several 
commenters objected to the provision stating that the Corps would 
consider the SMCRA agency's decision regarding the amount of currently 
undisturbed adjacent lands needed to facilitate the remining and 
reclamation of the previously mined area, stating that it creates 
duplicative and potentially conflicting layers of regulation to an 
already highly regulated industry.
    The 40 percent limit was established when NWP 49 was first issued 
in 2007, and was based on the recognition that some new coal mining may 
have to be conducted to provide incentives to remine and reclaim 
previously mined lands. The 40 percent limit is intended to facilitate 
compliance with the minimal adverse effects requirement for the NWPs. 
We do not agree that it would be appropriate to add a provision 
allowing district engineers to waive the 40 percent limit. Remining and 
reclamation activities involving discharges of dredged or fill material 
into waters of the United States that require larger proportions of 
newly mined areas may be authorized by individual permits. The 
expertise provided by the agencies responsible for implementing SMCRA 
is necessary to help the Corps make its determination of compliance 
with the terms and conditions of this NWP.
    One commenter stated this NWP should look holistically at overall 
water and site improvements, improvement in the safety of the area by 
the elimination of pits and highwalls, and reclamation of sites without 
the use of public funds.
    We have focused this NWP on authorizing those activities that 
provide net increases in aquatic resource functions. The consideration 
of overall site improvements, increased safety, and the lack of use of 
public funds is more appropriately addressed by other agencies or 
programs.
    This NWP is reissued as proposed.
    NWP 50. Underground Coal Mining Activities. We proposed to place a 
\1/2\-acre limit on this NWP, as well as a 300-linear foot limit for 
losses of stream bed. We also proposed a provision that allows district 
engineers to waive the 300 linear foot limit for losses of intermittent 
or ephemeral stream bed by making a written determination concluding 
that the discharge of dredged or fill material will result in minimal 
adverse effects.
    Several commenters objected to the reissuance of this NWP, stating 
that it authorizes activities with more than minimal individual and 
cumulative adverse effects on the aquatic environment. Several 
commenters stated that activities authorized by this NWP will result in 
the loss of stream functions and adversely impact water quality 
downstream of the mine site. Several commenters said this NWP does not 
comply with the Section 404(b)(1) Guidelines and that the cumulative 
impacts analysis is too general and fails to consider past actions.
    We have imposed a \1/2\-acre limit on this NWP, as well as a 300 
linear foot limit for the loss of stream bed. Pre-construction 
notification is required for all activities authorized by this NWP, and 
the permittee may not begin work in waters of the United States until 
an NWP verification is issued by the district engineer. These 
requirements, as well as the ability of district engineers to exercise 
discretionary authority and modify the NWP authorization by imposing 
activity-specific conditions, will help ensure that the NWP authorizes 
only those activities with minimal individual and cumulative adverse 
effects on the aquatic environment. Division engineers may regionally 
condition this NWP to restrict or prohibit its use in specific 
geographic regions, waters, or watersheds if the use of this NWP would 
authorize activities with more than minimal individual and cumulative 
adverse effects. When reviewing pre-construction notifications, 
district engineers will also evaluate whether the proposed activity 
will cause more than minimal direct and indirect adverse effects to 
water quality downstream of the mine site. The issuance of this NWP 
complies with the 404(b)(1) Guidelines, and we have complied with the 
requirements at 40 CFR 230.7. The cumulative effects analysis provided 
in the decision document in accordance with the National Environmental 
Policy Act considers the effects of past actions, to the extent that 
they have continuing effects on the aquatic environment. Under the 
404(b)(1) Guidelines, the cumulative effects analysis involves 
prediction of the number of discharges likely to be regulated by a 
general permit until its expiration (see 40 CFR 230.7(b)(3)). That 
regulation, as well as 40 CFR 230.11(g), does not state that the 
effects of past actions have to be considered for the purposes of the 
404(b)(1) Guidelines analysis, although, as stated above, we have 
considered such effects in connection with our NEPA analysis.
    Several commenters stated that NWP 50 should not have any acreage 
and/or linear foot limitations as these limits would essentially render 
the permit unusable for underground mining operations.
    We do not agree that the \1/2\-acre limit and the 300 linear foot 
limit for stream bed losses make this NWP unusable. This NWP authorizes 
discharges of dredged or fill material into waters of the United States 
for underground coal mining activities, provided those activities 
result in minimal adverse effects on the aquatic environment. Since 
these coal mining activities occur underground, losses of waters of the 
United States are usually small in size because they are limited to 
discharges of dredged or fill material in waters of the United States 
to construct infrastructure and impoundments to support those mining 
activities. Underground coal mining activities that result in the loss 
of greater than \1/2\-acre of waters of the United States, or more than 
300 linear feet of perennial stream bed, may be authorized by 
individual permits or, if available, regional general permits.
    One commenter stated that districts have incorrectly classified 
perennial streams and that impacts to special aquatic sites (e.g., 
riffle and pool complexes) have not been properly considered. Another 
commenter said that Clean Water Act jurisdiction does not extend to 
ephemeral and intermittent streams. Several commenters indicated stream 
mitigation measures are not effective and the Corps has failed to 
provide a rational explanation as to how mitigation will attenuate 
cumulative effects.
    Classifying a stream as perennial, intermittent, or ephemeral is 
done by district engineers by evaluating available information on 
stream flow,

[[Page 10235]]

including information that may be submitted by a project proponent in 
support of a pre-construction notification. A site visit may also be 
conducted to identify perennial, intermittent, or ephemeral stream 
segments. Impacts to special aquatic sites such as riffle and pool 
complexes will be considered when reviewing a pre-construction 
notification, and discretionary authority will be asserted if the 
district engineer determines that the adverse effects on the aquatic 
environment are more than minimal. Both intermittent and ephemeral 
streams are subject to Clean Water Act jurisdiction if they are 
determined by district engineers to be waters of the United States 
after applying the appropriate regulations and guidance. Stream 
rehabilitation and enhancement activities have been shown to improve 
the ecological functions provided by those aquatic ecosystems. Stream 
compensatory mitigation projects must comply with the applicable 
requirements provided in general condition 23, mitigation, and the 
compensatory mitigation regulations at 33 CFR 320.4(r) and 33 CFR part 
332. District engineers will review and approve mitigation plans, and 
will require alternative or additional compensatory mitigation if they 
determine the proposed compensatory mitigation will not be sufficient 
to successfully offset the losses of aquatic resources caused by the 
permitted activity. Compensatory mitigation projects must be 
implemented in accordance with their approved mitigation plans. 
District engineers will also require monitoring of these compensatory 
mitigation projects, and require remediation and adaptive management if 
those mitigation projects are not providing the intended aquatic 
resource functions. If a district engineer determines that a 
compensatory mitigation project is not ecologically successful and 
fails to fulfill its objectives, district engineers may require 
alternative compensatory mitigation to comply with the mitigation 
requirements established through conditions added to the NWP 
authorization.
    Several commenters indicated the activities regulated by this NWP 
are also heavily regulated by SMCRA, the Federal Mine Safety and Health 
Act (MSHA), and the state mining and water resource programs; 
therefore, no limits should be imposed on the permit. One commenter 
said the limits and the waiver process is highly subjective and results 
in uncertainty in the Regulatory Program. One commenter stated that 
limitations imposed on this NWP could potentially require applicants to 
seek individual permits for all underground mining actions, which may 
result in a requirement to prepare an environmental impact statement. 
This commenter said that there should be a transition period without 
acreage or linear foot limits so that underground coal mining 
activities could continue to be authorized by this NWP until an 
individual permit can be obtained. One commenter said that reissuing 
NWP 50 with the \1/2\-acre and 300 linear foot limits would result in 
significant job losses for their company, which consists of Native 
Americans who comprise 62 percent of their workforce. One commenter 
said that the new limits on this NWP would also increase the Corps 
workload.
    This NWP provides authorization required under Section 404 of the 
Clean Water Act, for discharges of dredged or fill material into waters 
of the United States. The acreage and linear foot limits of this NWP 
are necessary to ensure that authorized activities result in minimal 
adverse effects on the aquatic environment. Compliance with other laws 
may be required for surface coal mining activities, but those decisions 
are made by the agencies responsible for administering those laws. 
District engineers will consider the criteria in paragraph (1) of 
section D, ``District Engineer's Decision'' and other appropriate 
criteria, when making a minimal effects determination for a proposed 
NWP activity. Activities that result in the loss of greater than \1/2\-
acre of waters of the United States require individual permits, unless 
those activities qualify for applicable regional general permits. If an 
individual permit is required, district engineers will determine 
whether an environmental impact statement is necessary to comply with 
the requirements of the National Environmental Policy Act. We do not 
agree that there should be a transition period for these activities, 
because the acreage and linear foot limits are necessary to comply with 
Section 404(e) of the Clean Water Act, and past use of this NWP 
indicates that the average loss of waters of the United States was 0.21 
acre per NWP 50 activity. While there might be an increase in the 
number of individual permits, we do not believe it will be a large 
workload increase. As with all NWPs, an activity that was authorized 
under the 2007 NWPs has until March 18, 2013, to be completed under 
this authorization.
    One state agency indicated implementation of the limits would 
result in increased workload for their staff and requested that funding 
be provided to their office to mitigate this increase. One commenter 
stated that sites which contain reclaimed and abandoned mines 
associated with deep mining operations with portals and/or bat habitat 
should be assessed for bat use.
    Any workload increase due to the addition of the \1/2\-acre and 300 
linear foot limits would be borne primarily by the Corps districts. It 
does not directly impose additional workload on state agencies. The 
SMCRA permits required for all mining activities must go through 
advanced coordination with the U.S. Fish and Wildlife Service regarding 
endangered bat species and with the State natural resources agencies 
regarding state listed bat species. Effects to wildlife, including 
bats, that are not federally-listed as endangered or threatened, or 
state-listed bat species, will also be addressed through the SMCRA 
permit process. For federally-listed bat species, activities authorized 
by this NWP must also comply with general condition 18, endangered 
species.
    This NWP is reissued as proposed.
    NWP 51. Land-Based Renewable Energy Generation Facilities. This NWP 
was proposed as NWP A to authorize the discharges of dredged or fill 
material into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction, 
expansion, or modification of land-based renewable energy production 
facilities. Examples include infrastructure to generate solar 
(concentrating solar power and photovoltaic), biomass, wind or 
geothermal energy and their collection systems. Attendant features may 
include, but are not limited to roads, parking lots, utility lines, and 
stormwater management facilities. We proposed a \1/2\-acre limit for 
this NWP, including the loss of no more than 300 linear feet of stream 
bed, unless for intermittent and ephemeral stream beds the district 
engineer waives this 300 linear foot limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects.
    Several commenters objected to the issuance of this NWP, stating 
that the Corps had failed to explain why the direct and indirect 
impacts resulting from the land-based renewable energy projects 
authorized by this NWP would be minimal, including the impacts caused 
by construction and operation of these facilities. These commenters 
said that individual permits should be required for these facilities. 
One of these commenters said that biomass facilities will significantly 
add to greenhouse gas

[[Page 10236]]

emissions and expressed the belief that biomass facilities will lead to 
increased land-clearing for harvest, planting and re-planting of trees. 
Several commenters stated that wind turbines will cause direct 
mortality on birds and bats and adversely affect critical avian and bat 
habitat. Two commenters stated that wind-generated energy facilities 
should incorporate guidelines developed by the U.S. Fish and Wildlife 
Service to minimize impacts to avian and bat species. One commenter 
stated that land-based wind and solar renewable energy facilities are 
not water dependent and should always require individual permits to 
allow for a thorough alternatives analysis for site selection. Several 
commenters stated that the activities authorized by this NWP are not 
similar in nature, since they involve various types of renewable energy 
facilities that have different adverse environmental effects.
    This NWP authorizes discharges of dredged or fill material into 
waters of the United States for the construction, expansion, or 
modification of land-based renewable energy facilities. Unless the 
operation of these facilities involves discharges of dredged or fill 
material into waters of the United States, the Corps does not 
authorize, or have any Federal control or responsibility over, their 
operation. We believe that the construction, expansion, or modification 
of these facilities has minimal adverse effects on the aquatic 
environment, individually and cumulatively. Division engineers can 
regionally condition this NWP to restrict or prohibit its use in waters 
of the United States, where the discharges of dredged or fill material 
are likely to result in more than minimal adverse effects on the 
aquatic environment. While there may be emissions of greenhouse gases 
during construction activities involving discharges of dredged or fill 
material into waters of the United States, those direct emissions will 
generally not exceed de minimus levels of a criteria pollutant or its 
precursors and are exempted by 40 CFR 93.153. Emissions of greenhouse 
gases that occur from the operation of a land-based renewable energy 
generation facility, as well as emissions that occur when harvesting 
plant material for biomass energy production and operating the energy 
generation facility, are outside the Corps scope of analysis under the 
National Environmental Policy Act, because the Corps does not have the 
legal authority to control such emissions. The 404(b)(1) Guidelines do 
not include any requirements to assess effects of proposed discharges 
of dredged or fill material into waters of the United States on 
greenhouse gas emissions. Land clearing that may be conducted for the 
harvesting, planting, and replanting of trees that provide fuel for 
biomass energy facilities is not authorized by this NWP, and if such 
activities involve discharges of dredged or fill material into waters 
of the United States, a separate Department of the Army permit is 
required.
    If the construction, expansion, or modification of a land-based 
renewable energy facility involves discharges of dredged or fill 
material into waters of the United States, and that activity may affect 
an endangered or threatened species, or is located in designated 
critical habitat, Endangered Species Act Section 7 consultation is 
required, and the activity cannot proceed until section 7 consultation 
is completed. We have added general condition 19, migratory birds and 
bald and golden eagles, to clarify that if an activity regulated by the 
Corps will result in the ``take'' of a migratory bird or a Bald or 
Golden Eagle, and a ``take'' permit is required from the U.S. Fish and 
Wildlife Service, it is the responsibility of the permittee to apply 
for, and obtain, the appropriate ``take'' permits from the U.S. Fish 
and Wildlife Service. The draft Land-based Wind Turbine Guidelines 
developed by the U.S. Fish and Wildlife Service are voluntary 
guidelines that project proponents may incorporate into their land-
based wind energy projects. The Corps does not have the authority to 
condition this NWP to incorporate the recommendations provided in those 
guidelines. Water dependency is not a requirement for authorization by 
general permit, including nationwide permits. The water dependency test 
in the 404(b)(1) Guidelines guides the alternatives analysis for 
activities that require individual permits under Section 404 of the 
Clean Water Act.
    The activities authorized by this NWP (i.e., discharges of dredged 
or fill material into waters of the United States for the construction, 
expansion, or modification of land-based renewable energy facilities) 
are similar in nature. The Corps interprets the ``similar in nature'' 
requirement in Section 404(e) of the Clean Water Act broadly, to cover 
general categories of activities. The discharges of dredged or fill 
material authorized by this NWP will have similar effects on the 
aquatic environment, by replacing waters of the United States with dry 
land, or altering their characteristics, when renewable energy 
facilities are constructed, modified, or expanded.
    Two commenters expressed concern that if NWP A is issued, all land-
based renewable energy facilities will require pre-construction 
notification because they could only be authorized by this NWP. Several 
commenters stated that NWP A should not be issued because all types of 
land-based renewable energy facilities can be authorized by existing 
NWPs, such as NWPs 12, 14, 18, 25, and 39, and it is not necessary to 
issue a new NWP that requires pre-construction notification for all 
activities. They also said that the issuance of NWP A would contradict 
the Corps stated goals of reducing administrative burdens on the 
regulated public, and utilizing its resources to focus on those 
projects that could be more environmentally damaging. One commenter 
stated that the pre-construction notification requirement would cause 
an unnecessary burden on project proponents, especially the requirement 
to provide a delineation of waters of the United States in the project 
area.
    We are retaining the requirement that all activities authorized by 
this NWP require pre-construction notification, so that district 
engineers can evaluate these activities and add activity-specific 
conditions, if necessary, to ensure that they result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
Other NWPs may be used to authorize discharges of dredged or fill 
material into waters of the United States for activities that may be 
associated with land-based renewable energy facilities. We do not 
intend issuance of this NWP to restrict currently available options for 
use of other NWPs to authorize any such discharges. For example, NWP 12 
may be used to authorize discharges of dredged or fill material 
associated with the construction, maintenance, repair, or removal of 
utility lines for land-based renewable energy facilities. Likewise, NWP 
14 may be used to authorize road crossings in waters of the United 
States within a land-based renewable energy facility. Project 
proponents may specify which NWP they wish to use to provide the 
requisite Department of the Army authorization under Section 404 of the 
Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 
1899. If the proposed activity qualifies for authorization under that 
particular NWP, the district engineer will issue a verification letter. 
This NWP fulfills the objectives of the NWP program, since many land-
based renewable energy projects require discharges of dredge or fill 
material into waters of the United States that would not qualify for 
NWPs 12 or 14, or other NWPs that do not require pre-construction 
notification.
    One commenter suggested changing the pre-construction notification

[[Page 10237]]

threshold to \1/10\-acre, so that compensatory mitigation would not be 
required for activities resulting in the loss of less than \1/10\-acre 
of waters of the United States. Another commenter said that requiring 
pre-construction notification for losses of less than \1/10\-acre 
removes incentives to minimize losses of waters of the United States to 
less than \1/10\-acre. Two commenters stated that increasing the pre-
construction notification threshold to \1/10\-acre would be more 
consistent with Executive Order 13212, Actions To Expedite Energy-
Related Projects.
    We do not agree that the pre-construction notification threshold 
should be increased to \1/10\-acre to match the pre-construction 
notification thresholds for NWP 12 or 14, since utility lines or road 
crossings may be only partial components of a land-based renewable 
energy generation facility. It should be noted that NWP 14 requires 
pre-construction notification for any discharge into a special aquatic 
site, including wetlands, which means that many NWP 14 activities that 
result in a loss of less than \1/10\-acre require pre-construction 
notification. Nationwide permit 12 should be used when the only 
activities that require Department of the Army authorization are 
discharges of dredged or fill material to construct, maintain, repair, 
or remove utility lines. Therefore, in Note 1 we state that NWP 12 is 
to be used to authorize those utility line activities, as long as those 
activities comply with the terms and conditions of NWP 12, including 
applicable regional conditions and any case-specific conditions imposed 
by the district engineer. This NWP authorizes building pads for the 
renewable energy generation devices and attendant features associated 
with those devices, such as parking lots and stormwater management 
facilities. If more than one NWP is used to authorize a land-based 
renewable energy generation facility, the activity must comply with 
general condition 28, use of multiple nationwide permits, which states 
that the loss of waters of the United States cannot exceed the acreage 
limit of the NWP with the highest specified acreage limit. Compensatory 
mitigation is at the discretion of the district engineer, and will be 
required when necessary to ensure that the authorized activity results 
in minimal individual and cumulative adverse effects on the aquatic 
environment. Paragraph (a) of general condition 23, mitigation, 
requires permittees to avoid both temporary and permanent adverse 
effects to waters of the United States on the project site. The 
issuance of this NWP supports the objective of Executive Order 13212, 
by providing NWP authorization for some activities that would otherwise 
require individual permits because they do not qualify for any of the 
existing NWPs.
    Two commenters agreed that NWP A is needed but said that many land-
based renewable energy projects would not qualify because the losses of 
waters of the United States frequently exceed the acreage or linear 
foot limits. One commenter suggested increasing the acreage limit to 
one acre and the linear foot limit to 500 linear feet of stream bed, 
and allow the district engineer to waive the 500 linear foot limit if 
he or she determines that the activity will result in minimal adverse 
environmental effects. One commenter stated that NWP A should not allow 
waivers for stream bed losses in excess of 300 linear feet.
    We believe that there will be a sufficient number of land-based 
renewable energy generation facilities authorized by this NWP to 
warrant its issuance. As with all general permits, this NWP will also 
provide an incentive for project proponents to reduce losses of waters 
of the United States to qualify for NWP authorization, instead of 
having to apply for individual permit authorization, if there are no 
regional general permits available to authorize these activities. The 
\1/2\-acre and 300 linear foot limits are necessary to ensure that this 
NWP authorizes only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment, and are 
consistent with the limits in many other NWPs. Division engineers can 
regionally condition this NWP to reduce the acreage limit or linear 
foot limits, or revoke this NWP in specific waters or geographic areas 
where the adverse effects on the aquatic environment may be more than 
minimal. In response to a pre-construction notification, the district 
engineer may add activity-specific conditions to the NWP authorization 
to impose requirements to satisfy the minimal adverse environmental 
effect requirement. The 300 linear foot limit for the loss of 
intermittent and ephemeral stream bed can only be waived when the 
district engineer makes a written determination that the loss of that 
stream bed will result in minimal adverse environmental effects, after 
evaluating the site-specific characteristics of the project.
    Several commenters said that all pre-construction notifications 
should be coordinated with other Federal and state agencies. One 
commenter stated that agency coordination should be required whenever a 
request for a waiver of the 300 linear foot limit is being evaluated by 
the district engineer. One commenter stated that this NWP should not 
include the waiver provision because of potential impacts to cultural 
resources and historic properties.
    We do not believe it is necessary to coordinate all activities 
authorized by this NWP with Federal and state agencies. District 
engineers will carefully evaluate these pre-construction notifications 
and determine whether the proposed activities qualify for NWP 
authorization. Agency coordination is required for pre-construction 
notifications for proposed activities resulting in the loss of 
intermittent or ephemeral stream bed in excess of 300 linear feet. 
Activities authorized by this NWP must also comply with general 
condition 20, historic properties and district engineers will conduct 
section 106 consultation if a proposed activity may have the potential 
to cause effects to any historic properties listed, or eligible for 
listing, on the National Register of Historic Places.
    Several commenters requested clarification on whether land-based 
renewable energy facilities would be considered as single and complete 
linear projects or single and complete non-linear projects. Several 
commenters asked if the linear features of these facilities, such as 
roads, utilities, and transmission lines, could be categorized as 
linear projects, while the construction of other components of the 
project, such as parking lots and buildings, would be considered as 
non-linear projects. A few commenters said terms and conditions should 
be added to the NWP to specify that the definition of single and 
complete linear project would always be used for linear components of 
the overall facility. One commenter stated that the activities 
authorized by this NWP should be considered one single and complete 
project because all renewable energy devices and their attendant 
features, including both linear and non-linear components, are required 
for the facility to have independent utility.
    We have added Note 1 to this NWP to clarify that the NWP authorizes 
discharges of dredged or fill material into waters of the United States 
for the construction, expansion, or modification of a land-based 
renewable energy generation facility, including attendant features 
within that facility, and that utility lines that are used to transfer 
energy from the renewable energy generation facility to a distribution 
system, regional grid, or other facility are generally considered to

[[Page 10238]]

be separate single and complete linear projects. Those utility lines 
may be authorized by NWP 12 or other Department of the Army 
authorization. A similar approach should be used for roads or other 
types of utility lines (e.g., sewage or water lines) constructed to 
provide access to, or service, the land-based renewable energy 
generation facility. We are using the term ``generally'' in Note 1 
because crossings of waters of the United States have to be at separate 
and distant locations to be a single and complete project. Crossings 
that are close together would not be considered separate single and 
complete projects. Since the configuration of land-based renewable 
energy generation facilities can vary substantially, district engineers 
will use their discretion to determine which activities are single and 
complete linear projects and which activities are single and complete 
non-linear projects, after evaluating the specific circumstances of a 
particular project. For example, the devices used to collect wind or 
solar energy may be arranged in a grid or in a linear configuration.
    One commenter asked how the permit area would be determined for 
land-based renewable energy facilities. Specifically, the commenter 
asked whether the permit area would be the entire area bound by the 
perimeter of the facility, or just those areas within the facility 
where there are discharges of fill material into waters of the United 
States.
    Identifying the permit area for the purposes of compliance with 
general condition 20, historic properties, is accomplished by applying 
the criteria in Appendix C to 33 CFR part 325, specifically paragraph 
1(g), as well as the interim guidance issued on April 25, 2005 
(paragraph 6(d)). The permit area will be determined by district 
engineers after considering the project-specific circumstances.
    Several commenters stated that this NWP should not authorize 
activities in certain geographic areas, such as the Great Lakes. One 
commenter said that approval may be required for facilities that would 
impact state-owned waters or submerged lands.
    Division engineers have the authority to suspend or revoke this NWP 
in specific waters or geographic areas. Division engineers may also add 
regional conditions to restrict or prohibit its use in certain waters 
or regions. In response to a pre-construction notification, district 
engineers may add activity-specific conditions to the NWP authorization 
to ensure that the activity results in minimal adverse effects on the 
aquatic environment. Project proponents must obtain all applicable 
Federal, state, or local authorizations, such as state permits to 
authorize activities on state-owned waters or submerged lands.
    One commenter said that this NWP could be used to authorize 
activities associated with wind energy generating structures, solar 
towers, or overhead transmission lines, which have the potential to 
interfere with Department of Defense's long range surveillance, 
homeland defense, testing, and training missions. This commenter 
requested that copies of pre-construction notifications and NWP 
verification letters for these activities be provided to the Department 
of Defense Siting Clearinghouse, so that the Department of Defense 
could have an opportunity to coordinate with the project proponent to 
ensure that long range surveillance, homeland defense, testing, and 
training missions are not adversely affected by these activities.
    We have added Note 2 to this NWP to require district engineers to 
send pre-construction notifications and NWP verification letters to the 
Department of Defense Siting Clearinghouse if this NWP is proposed to 
be used to authorize the construction of wind energy generating 
structures, solar towers, or overhead transmission lines. The 
Department of Defense Siting Clearinghouse is responsible for 
coordinating with the project proponent and resolving any potential 
effects on Department of Defense long range surveillance, homeland 
defense, testing, and training missions.
    Proposed NWP A is issued as NWP 51, with the changes discussed 
above.
    NWP 52. Water-Based Renewable Energy Generation Pilot Projects. 
This NWP was proposed as NWP B to authorize structures or work in 
navigable waters of the United States and discharges of dredged or fill 
material into waters of the United States, for the construction, 
expansion, or modification of water-based wind or hydrokinetic 
renewable energy generation pilot projects and their attendant 
features. Attendant features may include, but are not limited to land-
based distribution facilities, roads, parking lots, utility lines, and 
stormwater management facilities. We proposed a \1/2\-acre limit for 
this NWP, including the loss of no more than 300 linear feet of stream 
bed, unless for intermittent and ephemeral stream beds the district 
engineer waives this 300 linear foot limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects.
    Several commenters supported the issuance of this NWP. Some of 
these commenters provided suggestions to improve the NWP. Two 
commenters said the acreage limit should be increased from \1/2\-acre 
to one acre and the linear foot limit be increased from 300 linear feet 
to 500 linear feet. One commenter stated that the NWP limits impacts to 
\1/2\-acre without taking into consideration the aggregate capacity of 
the facility, only the number of generation units. One commenter said 
the pre-construction notification threshold should be increased to \1/
10\-acre to be consistent with the pre-construction notification 
threshold of some of the other NWPs that authorize similar activities, 
such as NWP 12. This commenter asked why activities associated with 
water-based renewable energy projects should be subject to closer 
scrutiny than other energy-related activities.
    We are issuing this NWP with the \1/2\-acre and 300 linear foot 
limits, and restricting its use to pilot projects, to ensure that this 
NWP authorizes only those activities that have minimal adverse effects 
on the aquatic environment. Division engineers can impose regional 
conditions on this NWP to decrease these limits, if there is potential 
for these activities to result in more than minimal adverse effects on 
the aquatic environment in a particular waterbody or geographic area. 
Individual permits, with a public notice and comment process, should be 
required for larger-scale water-based renewable energy generation 
facilities that are not pilot projects and involve activities that 
require Department of the Army authorization. Use of technologies other 
than wind or hydrokinetic devices for water-based renewable energy 
generation facilities may be authorized by other forms of Department of 
the Army permits, if such permits are required for the construction, 
expansion, modification, or removal of those devices. We are requiring 
pre-construction notification for all activities authorized by this 
NWP, so that district engineers can evaluate the proposed work and make 
a project-specific determination that the adverse effects on 
navigation, the aquatic environment, and other public interest review 
factors would be minimal, individually and cumulatively. It should be 
noted that NWP 12 only authorizes discharges of dredged or fill 
material, or structures or work in navigable waters of the United 
States, for the construction, maintenance, or repair of utility lines, 
and that all NWP 12 activities in section 10 waters require

[[Page 10239]]

pre-construction notification. Therefore, there are few differences in 
pre-construction notification thresholds for this NWP and other NWPs 
that may authorize similar activities. However, as with NWP 51, it is 
not our intent to limit any currently available options for use of 
other applicable NWPs to cover discharges of dredge or fill material 
associated with activities involved in the construction of water-based 
renewable energy generation pilot projects. Rather, this NWP provides 
an additional option for authorization of such discharges that are not 
currently covered by any other NWP.
    Several commenters also stated that the limit of 10 generation 
units should either be eliminated or further defined. Several 
commenters said the 10 generation unit limit should be removed to allow 
projects that employ different technologies to be authorized by this 
NWP. Several commenters said that the total number of generation units 
should be defined as the total number of units per each single and 
complete project.
    We believe the 10-unit limit is necessary to ensure that these 
pilot projects are small in scope, to ensure they would not have 
significant adverse environmental effects. The 10-unit limit, as well 
as the \1/2\-acre and 300 linear foot limits, apply to single and 
complete projects. The information collected during these pilot 
projects will be useful in evaluating the potential productivity, 
feasibility, and environmental effects of larger scale water-based 
renewable energy generation facilities, which will require other types 
of authorization if they require DA permits.
    Numerous commenters objected to the issuance of this NWP. Most of 
these commenters said that these activities will result in more than 
minimal individual and cumulative adverse effects on the aquatic 
environment. Several commenters said that there is not sufficient 
understanding of the environmental effects of these activities to 
warrant issuance of an NWP. Some commenters stated that these 
activities should be authorized by individual permits, with a full 
public notice and comment process and National Environmental Policy Act 
documentation. A few commenters said this NWP should not be used to 
authorize activities in the Great Lakes.
    The terms and conditions of this NWP, including the \1/2\-acre 
limit, the 300 linear foot limit, and the 10-unit limit will ensure 
that this NWP authorizes only those activities with minimal adverse 
effects on the aquatic environment. All activities authorized by this 
NWP require pre-construction notification, which provides district 
engineers with the opportunity to review each proposed activity and 
determine whether the adverse effects on the aquatic environment will 
be minimal. District engineers may add activity-specific conditions to 
the NWP authorization which require actions to mitigate adverse 
environmental effects. District engineers may also exercise 
discretionary authority to require an individual permit if permit 
conditions will not be sufficient to comply with the minimal adverse 
environmental effects requirement for general permits. Division 
engineers may impose regional conditions to restrict or prohibit the 
use of this NWP in certain waters or specific geographic areas, 
including the Great Lakes.
    Several commenters requested a definition of the term ``pilot 
project.'' Some of these commenters said that this term could be 
interpreted broadly, in part because much of the technology used for 
water-based renewable energy generation facilities is in the early 
stages of development. In contrast, another commenter stated that not 
defining the term ``pilot project'' would restrict the applicability of 
this NWP. One commenter suggested that this NWP not be limited to pilot 
projects. One commenter recommended limiting pilot projects to those 
that will be used as demonstration projects or test projects to 
determine the practicability of water-based renewable energy generation 
at a particular site. One commenter said that this NWP should not be 
limited to small offshore wind energy pilot projects, and that this NWP 
should authorize offshore wind energy projects of any duration to 
encourage the development of renewable energy technologies.
    We have added a provision to this NWP that defines the term ``pilot 
project.'' The definition is similar to how the Federal Energy 
Regulatory Commission describes hydrokinetic pilot projects in their 
April 2008 white paper on licensing hydrokinetic pilot projects. The 
definition in the NWP focuses on the experimental nature of pilot 
projects, and their use in collecting data on the performance of the 
device in generating energy for other uses and the effects of the 
devices on the environment, including the aquatic environment. Due to 
the recent development of this technology, we believe it is necessary 
to limit these water-based renewable energy generation facilities to 
pilot projects, to provide more information on potential adverse 
effects to the aquatic environment. In a future reissuance of the NWPs, 
we may consider expanding the scope of this NWP to authorize other 
small-scale water-based renewable energy generation facilities. A 
water-based renewable energy generation facility that is not a pilot 
project and does not qualify for an applicable regional general permit 
is more appropriately evaluated through the standard permit process, 
including a full public interest review.
    One commenter stated that even pilot projects may result in more 
than minimal adverse effects on the aquatic environment because of 
indirect effects caused by blade strikes on birds and potential 
obstructions to navigation when these pilot projects are sited in 
navigable rivers. One commenter said the 10 generation unit limit may 
not be effective in ensuring that single and complete projects do not 
cause more than minimal adverse environmental effects on a cumulative 
basis or comply with monitoring requirements.
    District engineers will review pre-construction notifications and 
determine whether the proposed activity complies with all terms and 
conditions of the NWP and may add activity-specific conditions, such as 
authorizing less than 10 units, to minimize adverse effects to 
navigation, the aquatic environment, and other public interest review 
factors such as impacts to fish and wildlife values. Indirect effects 
caused by the operation of these pilot projects, such as wind turbine 
blade strikes on birds, should be addressed through compliance with the 
appropriate Federal laws, such as the Endangered Species Act, Migratory 
Bird Treaty Act, or Bald and Golden Eagle Protection Act. Compliance 
with the Endangered Species Act is addressed through general condition 
18. As stated in general condition 19, project proponents are 
responsible for obtaining any take permits that may be required under 
the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection 
Act. The project proponent should contact the local office of the U.S. 
Fish and Wildlife Service to determine whether a take permit is 
required for that project. Impacts to fish or other aquatic organisms 
caused by hydrokinetic energy units should be considered by district 
engineers when reviewing pre-construction notifications for activities 
authorized by this NWP. District engineers may also suspend or revoke 
NWP authorizations if they determine those activities are causing more 
than minimal adverse environmental effects to the aquatic environment. 
Division engineers may impose regional conditions on this NWP to reduce 
the number of units authorized by this NWP, or restrict or prohibit its 
use in specific waters or other geographic areas.

[[Page 10240]]

    Several commenters requested clarification of applicability of the 
300 linear foot stream limit to the ocean floor or the Great Lakes 
because those waters are not characterized as streams. A few commenters 
suggested that the 300 linear foot limit does not apply to water-based 
renewable energy generation pilot projects in the ocean or large 
rivers, since activities in those waters does not result in a loss of 
stream bed.
    We agree that the 300 linear foot limit does not apply to the 
construction, expansion, modification, or removal of water-based wind 
or hydrokinetic renewable energy devices in the ocean, Great Lakes, or 
large navigable rivers, since those activities do not result in loss of 
stream bed. The 300 linear foot limit also does not apply to the 
installation or removal of transmission lines on the ocean floor, the 
bottom of the Great Lakes, or the substrate of large navigable rivers. 
Transmission lines placed on the bottom of navigable waters are 
generally considered to be structures, not fill. District engineers 
will evaluate the techniques used to place transmission lines on the 
bottom of navigable waters and determine whether there is a discharge 
of dredged or fill material, and whether that discharge of dredged or 
fill results in a loss of waters of the United States subject to the 
300 linear foot limit. The installation of transmission lines in these 
navigable waters in trenches that are backfilled constitutes a 
temporary impact and is not applied to the 300 linear foot limit for 
the loss of stream bed. The 300 linear foot limit for the loss of 
stream bed applies primarily to the construction of land-based 
attendant features, such as distribution facilities, control 
facilities, roads, parking lots, and stormwater management facilities. 
We have added a provision to this NWP to clarify that the placement of 
a transmission line on the bed of a navigable water of the United 
States from the renewable energy generation unit(s) to a land-based 
collection facility is considered a structure regulated under Section 
10 of the Rivers and Harbors Act of 1899, and not a discharge of fill 
material under Section 404 of the Clean Water Act. The placement of the 
transmission line on the bed of the navigable water is not considered a 
loss of waters of the United States that applies towards the \1/2\-acre 
limit or 300 linear foot limit of the NWP.
    Several commenters requested the addition of more categories of 
sensitive habitat where this NWP could not be used to authorize 
structures or work in navigable waters of the United States or 
discharges of dredged or fill material into waters of the United States 
for water-based renewable energy generation pilot projects. Two 
commenters suggested adding coral reefs to the list of prohibited 
areas. Another commenter suggested adding National wildlife refuges, 
state parks, state wildlife management areas, designated significant 
coastal areas, critical habitats for Federally-listed endangered and 
threatened species, important bird areas, or any sensitive 
environmental area. One commenter recommended adding eelgrass beds, 
seagrass beds, kelp beds, macro-algae beds, vegetated shallows, and 
shellfish beds to the list of excluded areas.
    The proposed NWP B stated that it did not authorize activities in 
coral reefs. This NWP is also subject to general condition 22, 
designated critical resource waters, which prohibits using this NWP to 
authorize discharges of dredged or fill material into critical resource 
waters and their adjacent wetlands. Critical resource waters include 
marine sanctuaries and marine monuments managed by the National Oceanic 
and Atmospheric Administration, and National Estuarine Research 
Reserves. District engineers may designate additional critical resource 
waters, after notice and an opportunity for public comment. Division 
engineers may also impose regional conditions to restrict or prohibit 
the use of this NWP in specific categories of waters or in certain 
geographic areas. In response to a pre-construction notification, 
district engineers may exercise discretionary authority and require an 
individual permit if the proposed activity will result in more than 
minimal adverse effects on the aquatic environment.
    One commenter said that district engineers should not be authorized 
to waive the 300 linear foot limit for the loss of intermittent and 
ephemeral stream bed. One commenter suggested that all pre-construction 
notifications requesting a waiver of the 300 linear foot limit should 
be coordinated with the Federal and state resource agencies.
    For those losses of more than 300 linear feet of intermittent and 
ephemeral stream bed that result in minimal adverse effects on the 
aquatic environment, it is appropriate for district engineers to have 
the authority to waive the 300 linear foot limit. This approach is 
consistent with the statutory requirement that activities authorized by 
general permits, including NWPs, result in minimal individual and 
cumulative adverse environmental effects. Agency coordination is 
required for proposed losses of greater than 300 linear feet of 
intermittent and ephemeral stream bed.
    Two commenters recommended adding a provision to this NWP that 
requires the removal of structures associated with any activity 
authorized under this NWP, once the pilot project has been completed. 
One commenter suggested adding more examples of attendant features that 
may be authorized by this NWP, such as control rooms, trailers, vaults 
and sheds since these are common features of land-based distribution 
facilities.
    We have added a paragraph to this NWP that requires the permittee 
to remove the generation units, transmission lines, and other 
structures or fills associated with the pilot project once the pilot 
project is completed, unless they are authorized by a separate 
Department of the Army authorization, such as another NWP, an 
individual permit, or a regional general permit. Pilot units may be 
integrated into a permanent water-based renewable energy generation 
facility after the experimental phase has been completed, and the 
permanent facility has been authorized by any required Department of 
the Army permits. We have also added ``removal'' to the first sentence 
of this NWP, to clarify that the NWP also authorizes the removal of 
structures and fills associated with water-based renewable energy 
generation pilot projects, if, for example, the removal of structures 
or fills from navigable waters of the United States would require 
authorization under Section 10 of the Rivers and Harbors Act of 1899. 
Furthermore, we added a clarification of ``completion of the pilot 
project,'' which will be identified as the date of expiration of the 
FERC (Federal Energy Regulatory Commission) license, or the expiration 
date of the NWP authorization if no FERC license is issued. If the 
project proponent wants to continue operating the pilot project after 
the expiration of the FERC license, he or she should apply for another 
form of DA permit, such as an individual permit. If the pilot project 
was only authorized by NWP 52, it may be verified under a reissued NWP 
52, if NWP 52 is reissued in 2017. Reauthorization under a reissued NWP 
52 may require submission of a new pre-construction notification, to 
ensure that the pilot project still meets the terms and conditions of 
the reissued NWP 52. We have added ``control facilities'' to the list 
of examples of attendant features.
    One commenter recommended adding a note to the NWP to require a 
mutual agreement between the Corps, the United States Coast Guard, and 
a prospective permittee to ensure

[[Page 10241]]

navigational safety. One commenter stated that the NWP should include a 
provision requiring compliance with state permit requirements to ensure 
a consistent and thorough environmental review. One commenter said that 
this NWP should require project proponents to comply with the 
Department of the Interior's suggested practices for avian protection 
to protect birds from electrocution.
    We do not agree that it is necessary to require the execution of 
agreements between the Corps, United States Coast Guard, and the 
prospective permittee to ensure navigation safety. District engineers 
will review pre-construction notifications and exercise discretionary 
authority if the proposed activity will have more than minimal adverse 
effects on navigation. The permittee must comply with applicable United 
States Coast Guard requirements to mark or light structures in 
navigable waters. It is the permittee's responsibility to obtain any 
other Federal, state, or local authorizations that may be required for 
the water-based renewable energy generation pilot project. The 
permittee may voluntarily incorporate into his or her project the 
Department of the Interior's recommended practices for protecting birds 
from electrocution. If the proposed NWP activity may affect endangered 
or threatened bird species, Endangered Species Act Section 7 
consultation will be conducted, which may also address potential 
effects to those species caused by electrocution. In accordance with 
general condition 19, migratory birds and bald and golden eagles, it is 
the permittee's responsibility to obtain any ``take'' permits that may 
be required under the U.S. Fish and Wildlife Service's regulations 
governing compliance with the Migratory Bird Treaty Act and the Bald 
and Golden Eagle Protection Act.
    One commenter said that this NWP could be used to authorize 
activities associated with wind energy generating structures, solar 
towers, or overhead transmission lines, which have the potential to 
interfere with Department of Defense's long range surveillance, 
homeland defense, testing, and training missions. This commenter 
requested that copies of pre-construction notifications and NWP 
verification letters for these activities be provided to the Department 
of Defense Siting Clearinghouse, so that the Department of Defense 
could have an opportunity to coordinate with the project proponent to 
ensure that long range surveillance, homeland defense, testing, and 
training missions are not adversely affected by these activities.
    We have added Note 4 to this NWP to require district engineers to 
send pre-construction notifications and NWP verification letters to the 
Department of Defense Siting Clearinghouse if this NWP is proposed to 
be used to authorize the construction of wind energy generating 
structures, solar towers, or overhead transmission lines. The 
Department of Defense Siting Clearinghouse is responsible for 
coordinating with the project proponent and resolving any potential 
effects on Department of Defense long range surveillance, homeland 
defense, testing, and training missions.
    Proposed NWP B is issued as NWP 52, with the changes discussed 
above.

General Conditions

    One commenter suggested reordering the general conditions to better 
aggregate concepts based on importance to permittees and the resources 
potentially affected. One commenter recommended placing general 
conditions 14 and 20 together because they both address cultural 
resources. One commenter said that proposed general condition 30, pre-
construction notification, should become general condition 1 because of 
its importance for potential users of the NWPs, in terms of the pre-
construction notification requirements.
    With one exception, we have retained the order of the general 
conditions because we believe they are in a logical order. We have 
moved proposed general condition 14, discovery of previously unknown 
remains and artifacts, to become general condition 21 so that it 
follows general condition 20, historic properties. We have retained the 
pre-construction notification general condition in its place as the 
last general condition (as general condition 31), because the text of 
the NWPs state which activities require pre-construction notification.
    Two commenters suggested new general conditions to minimize 
construction impacts. One suggestion was to require flagging 
construction limits to protect nearby aquatic areas and the other 
recommended a general condition to address temporary crossings or 
structures.
    Requirements to flag construction limits are more appropriately 
addressed through activity-specific conditions added to an NWP 
authorization, when the district engineer determines such flagging is 
necessary to ensure the authorized activity results in minimal adverse 
effects on the aquatic environment. General condition 13, removal of 
temporary fills, and general condition 9, management of water flows, 
adequately address the concerns about temporary crossings and 
structures.
    One commenter said the phrase ``as appropriate'' should be deleted 
from the Note at the beginning of Section C, Nationwide Permit General 
Conditions.
    We have changed this phrase to ``as applicable'' to clarify that a 
permittee is responsible for complying with general conditions that are 
pertinent to a particular NWP activity.

Comments on Specific General Conditions

    GC 1. Navigation. We did not propose any changes to this general 
condition and no comments were received. The general condition is 
adopted as proposed.
    GC 2. Aquatic Life Movements. We proposed to modify this general 
condition to provide added protection to the aquatic environment by 
promoting the use of bottomless culverts, when it is practicable to use 
those types of culverts to maintain movements of aquatic organisms.
    Two commenters supported the proposed changes to this general 
condition. One commenter said that all crossings should be designed by 
using a stream simulation technique. Another commenter stated that 
requirements for bottomless culverts should only apply to new 
activities. Many commenters said that culverts that are installed with 
their bottoms below the grade of the stream bed can be as effective as 
bottomless culverts in improving conditions for aquatic life movement 
while still being cost effective and providing the intended function of 
allowing movement of aquatic organisms.
    Many commenters objected to the proposed changes to this general 
condition, and most of these commenters requested that the reference to 
the use of bottomless culverts be removed, stating that in many cases 
that bottomless culverts are not practicable or cannot be used in many 
locations. A large number of commenters expressed concern that 
requiring the use of bottomless culverts would significantly increase 
costs and would not be feasible. Several commenters disagreed that the 
use of bottomless or buried culverts reduces overall impacts to 
streams, and some commenters said that use of bottomless culverts can 
cause adverse effects to streams by increasing erosion and head cuts. 
One commenter recommended promoting the use of alternative measures or 
techniques to maintain aquatic life movements. Some commenters said 
that the proposed changes to this general condition would

[[Page 10242]]

result in all affected activities requiring pre-construction 
notification.
    After evaluating the large number of comments received in response 
to the proposed changes to this general condition, we have generally 
reverted back to the text that was in the 2007 general condition, with 
a few minor changes. We have modified the last sentence of the 2007 
general condition to make it clear that the general condition applies 
to both temporary and permanent crossings, and that those crossings 
should be designed and constructed to maintain low flows to sustain the 
movement of indigenous aquatic species. We have not adopted the 
provision that would have required bottomless culverts to be used where 
practicable. In addition, we have not incorporated the sentence that 
explains some of the circumstances where bottomless culverts may not be 
practicable. In response to a pre-construction notification, the 
district engineer may evaluate the proposed crossing to determine 
whether it complies with this general condition. The district engineer 
may add conditions to the NWP authorization to require measures to 
sustain aquatic life movements, including bottomless culverts, if 
appropriate.
    Many commenters said that bottomless culverts require complex 
designs that require pile supported footings and many local and county 
governments do not have the resources available to design, construct, 
and maintain bottomless culverts in a manner that ensures roadway 
safety. Many commenters stated that bottomless culverts need more long-
term maintenance and will increase costs and delays. One commenter 
noted that construction techniques required to install bottomless 
culverts may result in unsuitable conditions for aquatic life movement. 
Several commenters expressed concern that footings may deteriorate and 
undermine the integrity of the structure and increase the possibility 
of collapse during high flow conditions. Several commenters said 
bottomless culverts cannot be installed in areas with highly erodible 
or weak soils. One commenter asserted that bottomless culverts 
generally cannot support load conditions created by rail traffic.
    Because of the various factors that determine appropriate culvert 
designs for a particular waterbody, we are not adopting the proposed 
language concerning bottomless culverts. The general condition requires 
permanent and temporary crossings to be suitably culverted, bridged, or 
otherwise designed and constructed to fulfill the objective of the 
general condition, which is to sustain the movements of aquatic species 
indigenous to the waterbody, both during and after completion of the 
activity.
    Several commenters stated that requiring bottomless culverts or 
bottoms of culverts to be below the grade of the stream bed restricts 
design flexibility that reflects site specific conditions. One 
commenter said it is not practicable to install the bottoms of culverts 
below grade in all circumstances. One commenter said that the 
appropriate structure to allow aquatic life movements to continue 
should be determined by considering the land cover within the 
watershed, the variability of stream flow, and the presence or absence 
of aquatic life. One commenter indicated that it is not possible to 
bury pre-cast culverts because the bed material would be difficult to 
place. This commenter also said that below grade structures collect 
more debris and increase erosion on the downstream side of the culvert. 
This commenter expressed concern that culvert bottoms installed below 
grade would cause water to pool and provide habitat for pests such as 
mosquitoes. One commenter said that below grade culverts direct high 
velocity flows and create scour holes at the outlet and destabilize the 
banks. Another commenter stated that sinking a culvert below grade 
drains land used for row crops and accumulates silt that blocks aquatic 
life movements.
    We have also removed the provision requiring the bottoms of 
culverts to be installed below the grade of the stream bed unless the 
stream bed consists of bedrock or boulders. The modified general 
condition merely states that permanent and temporary crossings of 
waterbodies must be suitably culverted, bridged, or otherwise designed 
or constructed, to provide flexibility for using a crossing that is 
appropriate for the site conditions, while sustaining the movements of 
aquatic species indigenous to the waterbody.
    Many commenters said that the use of bottomless culverts should be 
limited to perennial streams. A number of commenters stated that many 
ephemeral and intermittent streams are not capable of supporting 
aquatic life or do not have sufficient aquatic life movement to justify 
the expense and technical design requirements for bottomless culverts. 
Several commenters said this general condition should not apply to 
ephemeral streams. One commenter stated that bottomless culverts should 
only be used in waters that support special status aquatic life 
species. One commenter said the bottomless culvert requirement should 
be limited to streams and not required for ditches or other waters. 
Another commenter expressed concern that installing the bottom of the 
culvert below grade will tend to dewater wetlands.
    The general condition has been reworded to provide flexibility to 
determine appropriate culvert design based on site-specific 
characteristics. Crossings of perennial, intermittent, and ephemeral 
streams must be appropriately designed and constructed to sustain the 
movement of indigenous aquatic species.
    Many commenters requested a definition of the term ``practicable'' 
as used in the context of the proposed general condition. One commenter 
said that regional variability should be considered when determining if 
it is practicable to use a bottomless culvert. Several commenters asked 
for more examples of when it would be impractical to use a bottomless 
culvert. One commenter requested clarification as to who would 
determine if use of a bottomless culvert is practicable. Many 
commenters said cost should be a primary factor used to determine if it 
is practicable to use a bottomless culvert. One commenter stated that 
there would be additional paperwork requirements necessary to evaluate 
the practicability of using bottomless culverts.
    The proposed provision requiring the use of bottomless culverts 
where practicable has not been adopted into the final general 
condition. The term ``practicable'' is defined in the 404(b)(1) 
Guidelines at 40 CFR 230.3(q) as ``available and capable of being done 
after taking into consideration cost, existing technology, and 
logistics in light of overall project purposes.'' However, it is no 
longer used in this general condition.
    One commenter said the general condition should include criteria to 
be used to determine whether there is a substantial disruption to 
aquatic life movement. Two commenters asked what threshold would be 
used to identify a substantial disruption. Another commenter stated 
that the general condition should list the species that would be 
covered. One commenter said this general condition would not sustain 
aquatic life movements during future high flows that are expected as a 
result of global climate change.
    Determining compliance with this general condition is at the 
discretion of the district engineer. It is not possible to define, on a 
national basis, what constitutes a substantial disruption of the 
necessary life cycle movements of aquatic species indigenous to the 
waterbody. It is not appropriate to

[[Page 10243]]

provide a national list of such species, but this condition generally 
applies to all indigenous species in the waterbody whose life-cycle 
movement may be affected by the project. How global climate change 
might affect the flow patterns and volumes of particular streams, 
rivers, or other waterbodies cannot be predicted with a reasonable 
degree of certainty. Crossing designs should be based on present 
conditions, and the crossing may be modified at a later time to 
accommodate changes in flow patterns and volumes that occur as 
environmental conditions change.
    One commenter stated that additional requirements for proper 
culvert sizing should be added to this general condition to ensure fish 
passage and reduce failure. This commenter said that natural bankfull 
capacity of the stream channel should be maintained. One commenter also 
recommended that culverts have a width of 1.2 times the bankfull width 
of the stream, and be embedded a minimum of two feet to maintain 
connected habitat and a stable stream bed. Another commenter stated 
that stream crossings should maintain natural flows, substrate, and 
stream grade from upstream to downstream of the culvert. This commenter 
suggested adding a provision that states that bridges or bottomless 
culverts are to be used when practicable.
    The proper sizing of culverts is more appropriately addressed 
through an evaluation of the site for the proposed NWP activity and the 
surrounding area. The general condition focuses on maintaining the 
necessary life cycle movements of aquatic species indigenous to the 
waterbody, not the geomorphic characteristics of the waterbody. 
Maintenance of water flows, including the proper width and height of 
culverts, bridges, and other crossings, is more appropriately addressed 
by general condition 9, management of water flows. We have modified 
this general condition to require permanent and temporary crossings to 
be suitably culverted, bridged, or otherwise designed and constructed 
to maintain low flows to sustain the movement of indigenous aquatic 
species.
    Two commenters requested that, if the proposed changes to this 
general condition are adopted, sufficient time should be provided for 
state, county, and local governments to update their design 
requirements to include bottomless culverts. One commenter stated it 
would take approximately two years to develop standards for bottomless 
and buried culvert installation. Another commenter expressed concern 
about the expense and time required to revise the plans and 
specifications for projects nearly ready for construction.
    We do not believe it is necessary to provide a grandfathering 
provision for the implementation of this general condition. The general 
condition provides substantial flexibility to design permanent and 
temporary crossings, and uses a results-driven approach to help ensure 
that NWP activities have only minimal adverse effects on the movement 
of indigenous species of aquatic organisms. Existing construction and 
design standards can be used to satisfy the objective of this general 
condition.
    The general condition is adopted with the modifications discussed 
above.
    GC 3. Spawning Areas. We did not propose any changes to this 
general condition. One commenter said this general condition should be 
removed, and replaced with regional conditions that require buffers for 
spawning areas. This commenter reasoned that local buffer requirements 
would be more appropriate for satisfying the requirements of the 
Endangered Species Act. Two commenters stated that only requiring 
avoidance of spawning areas to the maximum extent practicable is not 
sufficient, and one of those commenters said that the destruction of 
spawning areas should not be allowed under any circumstances. One 
commenter recommended modifying this general condition to prohibit 
activities that adversely affected all spawning areas. One commenter 
suggested explicitly including forage fish habitat and submerged 
aquatic vegetation as protected resources in this general condition.
    We are retaining this general condition because spawning areas are 
important components of the aquatic environment and should be addressed 
at the national level to ensure that NWP activities result in minimal 
adverse effects on the aquatic environment. Division engineers may 
impose regional conditions on this NWP to establish buffers to protect 
spawning areas for particular species. Activities authorized by NWPs 
must also comply with general condition 18, endangered species. The 
intent of this general condition is to minimize adverse effects to 
spawning areas caused by NWP activities, and it is not feasible to 
completely prohibit activities that may affect spawning areas. In areas 
where there are documented concerns for fish forage habitat or 
submerged aquatic vegetation, division engineers can add regional 
conditions to the NWPs to restrict or prohibit activities in those 
areas.
    This general condition is adopted as proposed.
    GC 4. Migratory Bird Breeding Areas. We did not propose any changes 
to this general condition. One commenter said this general condition 
should be removed and regional conditions should be used instead to 
establish buffers for migratory bird breeding areas. This commenter 
also stated that the requirement that NWP activities avoid breeding 
areas for migratory birds to the maximum extent practicable is not 
sufficient to protect those areas. One commenter said buffers 
established through regional conditions would satisfy Endangered 
Species Act requirements more effectively.
    This general condition addresses a national concern for breeding 
areas for migratory birds, and establishes a consistent, national 
requirement for regulated activities to avoid these areas to the 
maximum extent practicable. Nationwide permit activities that may 
affect migratory birds that are listed as endangered or threatened 
under the Endangered Species Act, or that may affect designated 
critical habitat, must comply with general condition 18, endangered 
species.
    This general condition is adopted as proposed.
    GC 5. Shellfish Beds. We did not propose any changes to this 
general condition. One commenter said the term ``concentrated shellfish 
populations'' should be defined to specify a method to be used to 
identify such areas, because in some states shellfish beds are 
prominent features in waterways. Another commenter suggested changing 
the text of the general condition to state that shellfish beds created 
as habitat cannot be used for harvesting, and NWPs 4 and 48 could not 
authorize activities in those areas. One commenter recommended adding 
restoration projects authorized by NWP 27 to this general condition.
    The identification of concentrated shellfish populations for the 
purposes of determining compliance with this general condition is more 
appropriately conducted by district engineers using local criteria and 
methods. Shellfish beds established through habitat restoration 
projects may be used for growing shellfish for consumption and other 
uses, and the decision on whether harvesting in those areas should be 
allowed is at the discretion of Federal, state, and/or local 
authorities. We have added shellfish seeding or habitat restoration 
activities authorized by NWP 27 to the list of NWP activities that may 
occur in areas of concentrated shellfish populations, since NWP 27 
activities may improve habitat quality and further increase shellfish 
populations.

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    This general condition is adopted with the modification discussed 
above.
    GC 6. Suitable Material. We did not propose any changes to this 
general condition. One commenter recommended that this general 
condition should explicitly prohibit the use of tires as fill material, 
because tires can leach toxic amounts of chemicals that are harmful to 
aquatic species. One commenter said the general condition should be 
changed so that only environmentally suitable or stable material may be 
used as fill, because many plastics are unstable when exposed to 
ultraviolet light or temperature changes. One commenter stated that 
contaminated sediments should not be used as fill material. One 
commenter recommended modifying this general condition to minimize 
impacts to habitat and species caused by the leaching of heavy metals, 
pesticides, and polycyclic aromatic hydrocarbons.
    We do not believe it is necessary to add tires or plastics to the 
list of examples of unsuitable materials. Prohibiting the use of 
unsuitable materials is more effective and enforceable than stating 
that only environmental suitable or stable materials may be used. It is 
impractical, for the purposes of the NWP program, to establish what 
would constitute an environmentally suitable material since we are not 
aware of any Federal standards that could be applied, other than those 
covered under Section 307 of the Clean Water Act. A similar problem 
exists for identifying stable materials, because the timeframe that 
might be used to determine whether a particular material is ``stable'' 
would vary by the material. The district engineer will make a case-by-
case determination of what constitutes unsuitable material. The current 
text of the general condition prohibits the use of contaminated 
sediment as fill material, if it contains toxic pollutants in toxic 
amounts. The general condition also prohibits the use of materials that 
contain heavy metals, pesticides, and polycyclic aromatic hydrocarbons 
in toxic amounts, in accordance with Section 307 of the Clean Water 
Act.
    This general condition is adopted as proposed.
    GC 7. Water Supply Intakes. We did not propose any changes to this 
general condition and no comments were received. The general condition 
is adopted as proposed.
    GC 8. Adverse Effects from Impoundments. We did not propose any 
changes to this general condition. One commenter said the general 
condition should include specific examples of how to reduce impacts 
associated with accelerating passage of water and how to prevent the 
restriction of normal water flows. Another commenter asked for a 
definition for the term ``maximum extent practicable.'' Two commenters 
stated that impoundments that cause adverse effects to the aquatic 
environment by changing water flows should not be authorized by NWPs 
and should instead require individual permits with agency coordination.
    Specific measures for reducing impacts caused by accelerated water 
flows or restricted water flows have to be determined on a case-by-case 
basis after considering the environmental characteristics of the site 
of the NWP activity. It would not be appropriate to establish such 
measures at a national level. An activity-specific evaluation would 
also have to be done to determine whether the minimization of these 
adverse effects has been accomplished to the maximum extent 
practicable. District engineers will use their discretion to determine 
compliance with this general condition. The term ``practicable'' is 
defined in the 404(b)(1) Guidelines at 40 CFR 230.3(q) as ``available 
and capable of being done after taking into consideration cost, 
existing technology, and logistics in light of overall project 
purposes.'' We do not agree that all impoundments should require 
individual permits; impoundments may be authorized by general permits, 
including NWPs, as long as they have minimal individual and cumulative 
adverse effects on the aquatic environment and comply with the 
applicable terms and conditions, including any general conditions, 
regional conditions, and activity-specific conditions, of an NWP 
authorization.
    This general condition is adopted as proposed.
    GC 9. Management of Water Flows. We did not propose any changes to 
this general condition. One commenter asked for a definition of the 
term ``expected high flows'' and said the possibility of high flow 
events should be anticipated during project implementation. One 
commenter stated that this general condition should be modified to 
prohibit changes to stream channels in intertidal areas. One commenter 
stated that shoreline structures and fills, such as seawalls, 
bulkheads, and revetments, reflect wave energy that causes deep 
scouring of the shore, and over-steepened local shore faces. These 
induced hydraulic effects substantially alter the flow patterns in 
intertidal features such as ocean and estuarine beaches, wetlands and 
mudflats.
    It would be inappropriate to attempt to define the term ``expected 
high flows'' since it would depend on the environmental setting of the 
NWP activity. To comply with this general condition, the activity 
should not be substantially damaged by an expected high flow. 
Activities in stream channels located in intertidal areas are subject 
to this general condition and if a proposed NWP activity involves the 
alteration of intertidal stream channels and requires pre-construction 
notification, the district engineer will evaluate the proposed activity 
and determine whether it will result in minimal adverse effects on the 
aquatic environment. Bank stabilization activities should be designed 
and constructed to withstand expected high flows. Adverse effects to 
littoral or fluvial processes, or adverse effects caused by deflections 
of wave energy, should be considered by district engineers when 
evaluating pre-construction notifications for proposed bank 
stabilization activities.
    This general condition is adopted without change.
    GC 10. Fills Within 100-Year Floodplains. We did not propose any 
changes to this general condition. Several commenters explained the 
benefits of fully functional natural floodplains. Most of the 
commenters seemed to indicate that the Corps has regulatory 
jurisdiction over non-wetland floodplains. Several commenters objected 
to the general condition simply requiring compliance with Federal 
Emergency Management Agency (FEMA) approved state or local floodplain 
management requirements. Several commenters said that fills in 
floodplains identified by state or local FEMA-approved floodplain maps 
should only be authorized by individual permits, to ensure that state 
or local floodplain managers are aware of these activities. Two 
commenters stated that FEMA-approved standards are designed to ensure 
the public is reasonably safe from flooding, but these standards 
provide insufficient protection to waterways, floodplains, and other 
aquatic resources. One commenter said the Corps has an independent 
obligation to protect waters of the United States and this obligation 
extends to protection of floodplain resources.
    We acknowledge that floodplains provide important ecological 
functions and services, but it must also be understood that most areas 
within 100-year floodplains are not subject to Clean Water Act 
jurisdiction, because a large proportion of the area within 100-year 
floodplains consists of uplands. The Corps regulatory authority in 100-
year

[[Page 10245]]

floodplains is usually limited to discharges of dredged or fill 
material into waters of the United States, including jurisdictional 
wetlands. The protection of floodplains is more appropriately addressed 
through land use planning and zoning, which is primarily the 
responsibility of state and local governments, as well as tribal 
governments. Land use planning and zoning can provide the holistic 
approach needed to protect floodplain functions and services, reduce 
economic losses through flood damage reduction, and protect human 
health and welfare. If state, local, or tribal governments have zoned 
areas of 100-year floodplains for residential developments or other 
uses, and if those activities involve discharges of dredged or fill 
material into waters of the United States and meet the terms and 
conditions of an applicable NWP, and the NWP activity results in 
minimal adverse effects on the aquatic environment or other relevant 
public interest review factors, then authorization by NWP is 
appropriate.
    This general condition also recognizes that FEMA, in partnership 
with state and local governments, is the more appropriate authority for 
floodplain management. It is not the responsibility of the Corps to 
ensure that project proponents seek any required authorizations from 
state or local floodplain managers. Such a requirement would not 
constitute a condition that could be enforced by the Corps. We are not 
relying on FEMA-approved state or local floodplain management 
requirements to protect waters of the United States located in 100-year 
floodplains. The NWP program utilizes other tools, such as regional 
conditions, the district engineer's ability to exercise discretionary 
authority to revoke, suspend, or modify an NWP authorization, and add 
activity-specific conditions to ensure that activities authorized by 
the NWP results in minimal individual and cumulative adverse effects on 
the aquatic environment and other public interest review factors.
    Two commenters stated that fills in 100-year floodplains result in 
more than minimal adverse environmental effects and should not be 
authorized by NWP. One commenter suggested that the Corps evaluate NWP 
activities in floodplains and riparian areas in a more holistic manner 
than it did in previous NWP rulemaking efforts. One commenter said that 
authorizing discharges of fill material in waters of the United States 
in floodplains affects the ability to manage floodplains so that there 
are no adverse impacts. One commenter stated that coordination with the 
resource agencies should be required to protect habitat and 
biodiversity in floodplains.
    Discharges of dredged or fill material into waters of the United 
States located in 100-year floodplains often have minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Division engineers can impose regional conditions on one or more NWPs 
to restrict or prohibit their use in waters of the United States within 
100-year floodplains if those NWP activities would result in more that 
minimal adverse effects on the aquatic environment. In response to a 
pre-construction notification, district engineers may exercise 
discretionary authority and require an individual permit if the adverse 
effects on the aquatic environment would be more than minimal. District 
engineers may also add activity-specific conditions to an NWP 
authorization to require measures to minimize adverse effects on the 
aquatic environment caused by NWP activities. Since the Corps 
Regulatory Program only regulates discharges of dredged or fill 
material into waters of the United States and structures or work in 
navigable waters of the United States, and most areas of 100-year 
floodplains are not wetlands as defined at 33 CFR 328.3(b) or otherwise 
waters of the United States under 33 CFR 328.3(a) and associated 
guidance, the Corps does not have the authority to take a holistic 
approach to floodplain management. In areas of the country where 100-
year floodplains consist mostly of uplands, construction activities in 
these uplands may have a substantial adverse impact on these 100-year 
floodplains. We do not agree that agency coordination should be 
required for fills in 100-year floodplains, because district engineers 
have the necessary expertise to evaluate pre-construction notifications 
for potential adverse effects to habitat and biodiversity in these 
areas.
    Two commenters said the general condition should inform permittees 
of their responsibility to apply for a Conditional Letter of Map 
Revision from FEMA if they are discharging dredged or fill material 
into waters of the United States within 100-year floodplains. One 
commenter recognized that although proposed development projects must 
comply with all applicable Federal, state, regional and local 
regulatory requirements, many project proponents do not apply for all 
required permits. One commenter said that this general condition should 
be modified to require documentation of compliance with applicable 
FEMA-approved state or local floodplain management requirements. One 
commenter stated that FEMA-approved state or local floodplain 
management requirements do not adequately protect communities and 
resources from flood risks.
    We do not believe it is the Corps responsibility to notify a 
prospective permittee of his or her responsibility to apply for a 
Conditional Letter of Map Revision from FEMA if the overall project 
would modify the existing regulatory floodway, the effective base flood 
elevations, or a special flood hazard area. The discharge of dredged or 
fill material authorized by NWP is likely to be only a small proportion 
of the overall construction project within the 100-year floodplain. 
Section E, Further Information, states that obtaining an NWP 
authorization does not obviate the need to obtain other Federal, state, 
or local permits, approvals, or authorizations required by law. 
Building permits to authorize the construction of the overall project 
are the responsibility of the state or local government, and should be 
based on compliance with the applicable FEMA-approved state or local 
floodplain management requirements. It is not the Corps responsibility 
to ensure that project proponents have complied with the applicable 
FEMA-approved state or local floodplain management requirements; the 
state or local governments responsible for floodplain management should 
enforce the requirements they established to qualify the community for 
the National Flood Insurance Program. If the floodplain management 
requirements developed by state or local governments are not adequately 
protecting communities from flood risks, then the agency that approved 
those requirements is the appropriate entity to reexamine those 
requirements.
    One commenter requested that the Corps report the extent to which 
NWPs are being used in floodplains, particularly in areas that have 
experienced repeated flood damages. Two commenters stated that this 
general condition ignores the Corps own public interest review 
processes and does not comply with Executive Order 11988.
    The Corps does not track the number of NWP activities that have 
occurred in floodplains, since our statutory authorities are focused on 
activities involving discharges of dredged or fill material into waters 
of the United States and/or structures or work in navigable waters of 
the United States. As stated above, many areas of 100-year floodplains 
are uplands and not waters of the United States. In addition, there is 
no consistent national coverage in floodplain maps, since such maps are

[[Page 10246]]

either not available for some areas of the country or the existing maps 
are outdated. This general condition is consistent with our regulations 
on the public interest review, specifically 33 CFR 320.4(g), 
consideration of property ownership, 33 CFR 320.4(j), other Federal, 
state, or local requirements, and 33 CFR 320.4(l), floodplain 
management. Section 320.4(g)(1) states that an ``inherent aspect of 
property ownership is the right to reasonable private use.'' Section 
320.4(j)(2) states that the primary responsibility for land use 
planning and zoning is with state and local governments. Section 
320.4(l) requires consideration of whether practicable alternatives to 
floodplain development are available, and if there are no practicable 
alternatives, then impacts to human health, safety, and welfare, risks 
of flood losses, and impacts to natural and beneficial aspects of 
floodplains should be minimized to the maximum extent practicable. This 
NWP general condition, as well as the other terms and conditions of the 
NWPs, such as the acreage and linear foot limits for losses of waters 
of the United States, are consistent with the principles in these 
regulations because they require avoidance and minimization of adverse 
effects on the aquatic environment. Executive Order 11988 states that 
Federal agencies are to consider alternatives to ``avoid adverse 
effects'' to floodplains, and ``minimize potential harm to or within 
the floodplain''. The Executive Order also says that agencies should 
also consider flood hazards in the permit programs they administer. The 
adoption of general condition 10 into the NWP program is consistent 
with Executive Order 11988. It is also consistent with Executive Order 
13132, Federalism, because it recognizes the cooperative approach the 
Federal government has taken with state and local governments for 
floodplain management (i.e., federal review, by FEMA, of state or local 
floodplain management requirements).
    Two commenters suggested reinstating the provisions in the 2002 
NWPs that prohibited discharges of dredged or fill material into waters 
of the United States within mapped 100-year floodplains that would 
result in above-grade fills for residential, commercial and 
institutional developments, agriculture activities, recreational 
facilities, stormwater management facilities, and mining activities.
    We do not agree that the approach taken in the 2002 NWPs for fills 
in 100-year floodplains should be reinstated. There are sufficient 
safeguards in the NWPs, including the terms and conditions, pre-
construction notification requirements, and the authority for district 
engineers to exercise discretionary authority and either require 
individual permits or add conditions to NWP authorizations, to ensure 
that NWP activities have minimal adverse effects on the aquatic 
environment, including public interest review factors such as 
floodplain values and flood hazards.
    Three commenters said that using NWPs to authorize discharges of 
dredged of fill material into waters of the United States will result 
in increased flood damages in coastal and riparian areas by reducing 
the amount of aquatic area available to absorb future floods that will 
likely be larger and more frequent due to climate change. They 
suggested increasing the application fee for NWPs to cover the 
estimated cost of permit processing and to offset future economic 
impacts of authorizing floodplain development.
    The flood storage capacity of a coastal or inland floodplain is 
dependent primarily on its topographic characteristics, including the 
amount of land area available for storing flood waters. Uplands also 
provide important ecological services such as flood storage. Flood 
damage reduction is more effectively accomplished through land use 
planning and zoning, which as discussed above, is primarily the 
responsibility of state, local, and tribal governments. Charging 
application fees for NWP pre-construction notifications or verification 
requests is not being considered at this time.
    This general condition is adopted as proposed.
    GC 11. Equipment. We did not propose any changes to this general 
condition. One commenter stated that the condition should be changed to 
include streams, and not be limited to wetlands or mudflats.
    The intent of this general condition is to ensure that heavy 
equipment used in special aquatic sites such as wetlands and mudflats 
does not cause more than minimal disturbances to their soils. The 
substrate of stream beds is generally not considered to be soil, and 
other general conditions such as general condition 12, soil and 
sediment controls, are more appropriate to control the movement and 
disturbance of stream bed sediments. District engineers may also add 
activity-specific conditions to NWP authorizations, such as 
requirements to use best management practices, to minimize disturbances 
to stream beds.
    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 said the general 
condition should provide specific steps that will ensure protection of 
downstream water quality during the construction of permitted 
activities. Two commenters suggested adding requirements to prevent the 
erosion of sediments resulting from harvesting shellfish. One commenter 
stated that disturbed areas should be stabilized and vegetated areas 
should be restored to pre-construction conditions or improved 
conditions.
    Specific best management practices and other measures to protect 
downstream water quality are more appropriately addressed by 
considering the activity-specific environmental setting and adopting 
practices and measures that will control soil erosion and sediment 
loads on the site of the authorized activity. District engineers may 
add conditions to the NWP authorizations to require permittees to use 
specific best management practices or other techniques to minimize soil 
erosion and reduce transport of sediment to waters and wetlands. We do 
not believe it is necessary to modify this general condition to address 
sediment movement that may occur during shellfish harvesting 
activities, because such movements are usually minor and temporary and 
have minimal adverse effects on the aquatic environment. The 
restoration of areas where temporary fills have been placed, including 
revegetating those areas, is more appropriately addressed by general 
condition 13, removal of temporary fills.
    This general condition is adopted without change.
    GC 13. Removal of Temporary Fills. We did not propose any changes 
to this general condition. One commenter said the general condition 
should require the removal of temporary fills during periods of low-
flow or no-flow so that there will be little or no downstream transport 
of the fill material.
    It would be inappropriate to require that temporary fills be 
removed only during periods of low-flow or no-flow because it is not 
always practicable to wait until water flows are low or absent. In 
addition, more adverse effects to the aquatic environment may occur if 
the permittee is required to wait until low flow or no flow conditions 
exist. It is usually best to remove temporary fills as soon as possible 
to minimize sediment loads to downstream waters or to nearby wetlands. 
However, general condition 12, soil erosion and sediment controls, 
encourages permittees to work in waters of the United States during 
periods of low or no flow, when possible.

[[Page 10247]]

    This general condition is adopted as proposed.
    GC 14. Proper Maintenance. We did not propose any changes to this 
general condition. One commenter recommended changing the general 
condition to ensure that maintenance activities minimize impacts to 
waters and maintain downstream water quality. Another commenter 
suggested adding a provision that would require proper maintenance to 
ensure compliance with applicable NWP general conditions as well as 
conditions added to an NWP verification.
    The original intent of this general condition was to ensure that 
NWP activities are maintained so that they do not endanger public 
safety. There are other general conditions that more directly address 
minimization (e.g., general condition 23, mitigation) and water quality 
(e.g., general condition 12, soil erosion and sediment controls, and 
general condition 25, water quality). We agree that proper maintenance 
should also be required to comply with the terms and conditions of an 
NWP authorization, including any activity-specific conditions added to 
an NWP authorization by the district engineer. For example, road 
crossings should be properly maintained to continue complying with 
general condition 2, aquatic life movements.
    This general condition is adopted with the change discussed above.
    GC 15. Single and Complete Project. We did not propose any changes 
to this general condition. Two commenters recommend removing the term 
single and complete project. Two commenters said the definition of 
``single and complete project'' is flawed and that the acreage limit of 
an NWP should apply to the entire project, not just each single and 
complete project. One commenter suggested changing the general 
condition to state that an NWP activity cannot be expanded or modified 
at a later date. Two commenters said the general condition may allow 
piecemealing under the NWPs.
    It has been a long-standing principle in the NWP program that the 
NWPs authorize single and complete projects. This general condition was 
added to the NWPs in 2007 to make that clear to users of the NWPs. The 
general condition is consistent with the NWP regulations at 33 CFR part 
330 that were last revised in 1991, especially the definition at 33 CFR 
330.2(i). Some of the NWPs issued in the past included terms and 
conditions stating the NWP authorized single and complete projects. In 
2007, we added a general condition to make it clear that all NWPs 
authorize single and complete projects. As long as any proposed 
expansions or modifications of a previously authorized NWP activity 
comply with the terms of the NWPs, they can be authorized by NWP. 
Expansions or modifications that are not separate single and complete 
projects from the previously authorized activity have to comply with 
the terms and conditions of the NWP, including any acreage or linear 
foot limits that would apply to both the previously authorized activity 
and the NWP activity included in the expansion or modification. If the 
expansion or modification is determined by the district engineer to be 
a separate single and complete project, then that expansion or 
modification activity may qualify for separate NWP authorization. We do 
not agree that this general condition results in piecemealing, because 
the NWP authorization applies to each single and complete project. 
District engineers will exercise discretionary authority and require 
other forms of Department of the Army authorization if the use of the 
NWP to authorize activities in a watershed or other geographic area 
will result in more than minimal cumulative adverse effects on the 
aquatic environment.
    This general condition is adopted without change.
    GC 16. Wild and Scenic Rivers. We proposed to modify this general 
condition to clarify that information on these rivers should be 
obtained from the specific Federal land management agency responsible 
for the designated Wild and Scenic River or study river. One commenter 
supported reissuing the general condition.
    The general condition is adopted as proposed.
    GC 17. Tribal Rights. We did not propose any changes to this 
general condition. One commenter stated that the use of the NWPs will 
be in violation of tribal treaty rights, tribal water quality 
standards, and the Clean Water Act, and threaten salmon recovery 
efforts in the Pacific Northwest.
    Division engineers may impose regional conditions on the NWPs to 
restrict or prohibit their use in waters where NWP activities may 
result in more than minimal adverse effects on the aquatic environment 
or any other public interest review factor, including fish and wildlife 
values. We have directed our districts to initiate government-to-
government consultation with Tribes to develop and propose regional 
conditions to protect tribal treaty resources and other resources of 
importance to Tribes. Under this general condition, no activity may be 
authorized by NWP if it impairs reserved tribal rights, such as 
reserved water rights or treaty fishing and hunting rights. The 
regional conditioning process helps identify those rights on a 
geographic basis, so that prospective users of the NWPs and Corps 
districts are aware of those tribal rights. Nationwide permit 
activities must also comply with Tribal water quality standards, if 
those activities involve discharges into waters covered by Tribal water 
quality standards. Activities authorized by NWPs must also comply with 
general condition 18, endangered species, which will help support the 
recovery of listed salmon species.
    The general condition is adopted as proposed.
    GC 18. Endangered Species. We proposed to modify paragraph (a) of 
this general condition to clarify that both direct and indirect effects 
are to be taken into account when assessing whether an activity may 
jeopardize the continued existence of a threatened or endangered 
species or a species proposed for such designation, or destroy or 
adversely modify the critical habitat of such species. In addition, we 
proposed to modify paragraph (e) to include definitions of ``take'' and 
``harm.'' Another proposed change was to add a new paragraph (f) to 
provide prospective permittees with guidance on where they can obtain 
information on the locations of listed species and their critical 
habitat. One commenter expressed support for the proposed 
modifications.
    Several commenters requested clarification and definitions for the 
terms ``directly'' and ``indirectly'' as used in paragraph (a). In 
addition, several commenters objected to the addition of ``indirectly'' 
into the general condition, because they believe only direct effects 
should be considered. Several commenters expressed concern that this 
will result in the Corps evaluating direct and indirect effects that 
are far from the NWP activity.
    To provide clarification on the use of the terms ``direct'' and 
``indirect'' in the context of general condition 18 and the NWPs in 
general, we are adding definitions of ``direct effects'' and ``indirect 
effects.'' The definitions were adapted from the definitions provided 
in the Council of Environmental Quality's National Environmental Policy 
Act regulations at 40 CFR 1508.8. The definition of ``indirect effect'' 
is also generally consistent with the Services' definition within the 
definition of ``effects of the action'' at 50 CFR 402.02. The addition 
of indirect effects to paragraph (a) of the general condition is 
consistent with the U.S. Fish and Wildlife Service's and National 
Marine Fisheries Service's Endangered Species

[[Page 10248]]

Act Section 7 regulations for considering whether a proposed activity 
may jeopardize the continued existence of a listed species or may 
result in the destruction or adverse modification of critical habitat 
(see the definitions of ``destruction or adverse modification'' and 
``jeopardize the continued existence of'' at 50 CFR 402.02). The Corps 
is obligated by the section 7 consultation regulations to consider 
indirect effects caused by proposed NWP activities, and appropriate 
distances for such indirect effects will have to be determined on a 
case-by-case basis by district engineers.
    One commenter stated that the district engineer should evaluate the 
Endangered Species Act (ESA) compliance documentation provided by the 
Federal agency, and determine whether or not it is sufficient to 
address ESA compliance for the NWP activity, or whether additional ESA 
consultation is necessary. Two commenters recommended modifying 
paragraph (b) to clarify that documentation of compliance with the 
Endangered Species Act provided by a Federal agency will be sufficient 
and that Corps review and concurrence with that section 7 consultation 
is not required. One commenter said that paragraph (b) should make it 
clear that a state agency operating under federal funding can also 
provide the section 7 compliance documentation obtained by the Federal 
agency that oversees its activities, and not have to reinitiate 
consultation. Another commenter stated that when a non-Federal 
permittee is operating on behalf of a Federal agency, they should 
follow paragraph (b) of this general condition instead of paragraph 
(c).
    We have added a sentence to paragraph (b) to state that the 
district engineer will review the other Federal agencies' documentation 
of compliance with the Endangered Species Act and determine whether 
that compliance is sufficient for the NWP activity, or whether 
additional ESA consultation is necessary before the activity can be 
authorized by NWP. We believe this provision is necessary to address 
situations where the consultation conducted by the other Federal agency 
does not adequately cover the direct and indirect effects on listed 
species or designated critical habitat caused by the NWP activity. For 
similar reasons, we do not agree that it would be appropriate to modify 
paragraph (b) to explicitly state that state agencies may rely on ESA 
compliance documentation obtained by the Federal agency that provides 
them with funding for an activity. District engineers will generally 
accept another Federal agency's compliance with section 7, but there 
may be situations where that agency's section 7 compliance does not 
adequately address the activities authorized by an NWP and their 
effects on listed species or designated critical habitat. In those 
situations, the district engineer may conduct additional section 7 
consultation to satisfy the requirements of the Endangered Species Act. 
If it is not sufficient, then the non-Federal permittee has to follow 
paragraph (c) of this general condition instead.
    One commenter said that this general condition places the 
responsibility for determining whether a proposed activity may affect 
listed species in the hands of the permittee. One commenter requested 
clarification on how the ``might be affected'' threshold in the first 
sentence is to be determined by an applicant, because it is unclear and 
leaves room for broad interpretation. One commenter stated that the 
word ``might'' in the second sentence of paragraph (c) should be 
changed to ``may.''
    It is the Corps' responsibility to make ``may affect'' 
determinations for the purposes of the ESA, and the ``might be 
affected'' threshold is intended to be a cautionary threshold to give 
district engineers the opportunity to evaluate proposed activities and 
make their effect determinations. Prospective permittees are required 
to submit pre-construction notifications if the proposed NWP activity 
has the potential to affect a listed species, is in the vicinity of a 
listed species, or is located in designated critical habitat. If the 
Corps determines there will be no effect on listed species or 
designated critical habitat, then ESA section 7 consultation is not 
necessary. If the district engineer determines there will be an effect 
that requires ESA section 7 consultation, then he or she will initiate 
either formal or informal consultation with the U.S. Fish and Wildlife 
Service and/or the National Marine Fisheries Service, as appropriate.
    One commenter said paragraph (c) should clearly state that a pre-
construction notification is to be submitted if any listed species or 
designated critical habitat might be affected or is in the vicinity of 
the project, to ensure that another form of notification is not used. 
Two commenters stated that 30 days is sufficient for the Corps to 
notify the applicant of its ``may affect'' determination and asked why 
the general condition allows 45 days. Two commenters suggested 
modifying this general condition to state that if the prospective 
permittee does not receive a response from the Corps within 45 days, 
then he or she can assume that the Corps has determined that there is 
``no effect'' on a listed species. In addition, one of these commenters 
said that for projects that ``may affect'' a listed species, if the 
section 7 consultation is not concluded within 135 calendar days of 
initiation, the activity would be authorized to proceed as if a ``no 
effect'' determination has been made.
    We have modified the first sentence of paragraph (c) to state that 
non-Federal permittees must submit a pre-construction notification if 
the notification requirement is triggered. The 45-day period in 
paragraph (c) of this general condition is intended to be consistent 
with the 45-day review period for pre-construction notifications 
provided in paragraph (a) of general condition 31, pre-construction 
notification. Under paragraph (a) of general condition 31, a 
prospective permittee may not begin an NWP activity that requires pre-
construction notification until he or she has been notified in writing 
that the activity may proceed under the NWP, or 45 calendar days have 
passed since the district engineer received a complete pre-construction 
notification and no written notice has been provided to the applicant 
by the district or division engineer. However, if pre-construction 
notification was required by paragraph (c) of general condition 18, the 
prospective permittee may not proceed with the NWP activity until 
notified by the Corps, even if the 45 calendar days have passed, 
because the Corps regulations at 33 CFR 330.4(f)(2) state that NWP 
activities cannot commence until the requirements of the ESA have been 
satisfied and the district engineer has notified the applicant that the 
activity is authorized by NWP. It may take more than 135 days to 
complete section 7 consultation, and the NWP activity may not proceed 
until after consultation has been completed.
    Two commenters requested clarification on what work the prospective 
permittee is prohibited from conducting prior to the Corps making a 
determination of ``no effect'' or until section 7 consultation is 
completed. Two commenters requested clarification of the term 
``vicinity'' in this general condition.
    The work covered by the general condition and the Corps regulations 
at 33 CFR 330.2(f) depends on the scope of analysis for the ESA section 
7 consultation. The Corps follows the U.S. Fish and Wildlife Service's 
and National Marine Fisheries Service's regulations at 50 CFR part 402 
and Endangered Species Consultation Handbook to determine the section 7 
scope of

[[Page 10249]]

analysis. The scope of analysis includes the direct and indirect 
effects of the NWP activity, as well as the effects of other activities 
that are interrelated and interdependent with that activity (see 50 CFR 
402.02). The section 7 scope of analysis will be determined by district 
engineers on a case-by-case basis. Generally, the applicant cannot 
begin any work for which a Department of the Army permit is required 
until the applicable ESA provisions have been satisfied. The term 
``vicinity'' cannot be defined at a national level, since the extent of 
the vicinity depends on a variety of factors, including the species 
that might be affected, the proposed activity, and the environmental 
setting.
    One commenter said pre-construction notification should not be 
required for NWP activities that require section 7 compliance, if they 
would not otherwise require a pre-construction notification. This 
commenter stated that the prospective permittee should only be required 
to submit the appropriate documentation for section 7 consultation. One 
commenter stated that this general condition should also apply to 
state-listed threatened and endangered species.
    This general condition is consistent with the NWP regulations at 33 
CFR 330.4(f)(2), which requires the prospective permittee to notify the 
district engineer if any Federally-listed endangered or threatened 
species, or critical habitat, might be affected or is in the vicinity 
of the project. The prospective permittee must submit the information 
required for a pre-construction notification, so that the district 
engineer will have sufficient information to commence evaluation of the 
proposed activity and its effects on listed species or critical 
habitat. It would be inappropriate to expand the scope of this general 
condition to cover state-listed endangered and threatened species, 
since that is a regional issue that is best addressed through state 
laws and regulations. If a state is concerned about the potential 
impacts of one or more NWPs on state-listed species, the state may ask 
the Corps district to consider adding regional conditions to help 
protect state-listed endangered or threatened species.
    Two commenters recommended removal of the definitions of ``take'' 
and ``harm'' from this general condition and replacing those 
definitions with a reference to the Endangered Species Act, to reduce 
the potential for inconsistencies. One commenter said the Corps should 
instead use the U.S. Fish and Wildlife Service's regulations to 
determine what constitutes an effect or jeopardizes any threatened or 
endangered species or their critical habitat.
    The definition of ``take'' is identical to the definition in the 
Endangered Species Act (see 16 U.S.C. 1532(19)). The definition of 
``harm'' is the same as the definition in the U.S. Fish and Wildlife 
Service's regulations (50 CFR 17.3) and the National Marine Fisheries 
Service's regulations (50 CFR 222.102). The definitions of ``take'' and 
``harm'' were added to this condition to provide clarification for 
users of the NWPs, and facilitate compliance with the Endangered 
Species Act.
    One commenter stated that paragraph (f) should provide web links to 
the Services' ESA Section 7 regulations and other documents. Another 
commenter said the Corps should defer to the U.S. Fish and Wildlife 
Service on effects determinations.
    Paragraph (f) provides links to web sites for the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service to assist 
prospective permittees with obtaining information on listed species and 
other ESA documents. We do not believe it is necessary to provide a 
link to the Services' section 7 consultation regulations at 50 CFR part 
402 since it is the Corps responsibility to conduct section 7 
consultation. It is also the Corps responsibility to make ``may 
effect'' determinations for the purposes of the ESA and district 
engineers have the option of soliciting advice from the U.S. Fish and 
Wildlife and/or the National Marine Fisheries Service prior to making 
their determinations.
    One commenter recommended that surveys be conducted for state- and 
Federally-listed species prior to the start of construction. Another 
commenter said the lack of a requirement for surveys makes the pre-
construction notification requirement in this general condition 
ineffective. One commenter said that ``objective science'' is needed to 
identify habitats and species that may be affected by activities 
authorized by NWPs. One commenter stated that the Corps must consider 
the effects of climate change during the consultation process.
    The need for surveys for Federally listed species is to be 
determined by the district engineer on a case-by-case basis. It is not 
possible to require surveys for the tens of thousands of activities 
authorized by NWP each year. Project proponents are encouraged, but not 
required to contact the U.S. Fish and Wildlife Service or the National 
Marine Fisheries Service for assistance in determining whether listed 
species or critical habitat might be affected by the proposed activity. 
The effects of climate change on endangered and threatened species and 
their critical habitat is more appropriately addressed through the 
section 7 consultation process, since those effects are likely to be 
site-specific.
    The general condition is adopted with the modifications discussed 
above.
    GC 19. Migratory Bird and Bald and Golden Eagle Permits. We are 
adding this new general condition to clarify that permittees are 
responsible for complying with the Migratory Bird Treaty Act and the 
Bald and Golden Eagle Protection Act, and obtaining any ``take'' 
permits that may be required under the U.S. Fish and Wildlife Service's 
regulations issued under those two statutes. The Migratory Bird Treaty 
Act and the Bald and Golden Eagle Protection Act differ from the 
Endangered Species Act in that those two statutes and their 
implementing regulations establish the project proponent as the 
responsible party who has to apply to the U.S. Fish and Wildlife 
Service for take permits, if such permits are required.
    The U.S. Fish and Wildlife Service's implementing regulations that 
establish general permit requirements for migratory birds permits at 50 
CFR part 21 state that ``[n]o person may take, possess, import, export, 
transport, sell, purchase, barter, or offer for sale, purchase, or 
barter, any migratory bird, or the parts, nests, or eggs of such bird 
except as may be permitted under the terms of a valid permit issued 
pursuant to the provisions of this part and part 13 of this chapter, or 
as permitted by regulations in this part, or part 20 of this subchapter 
(the hunting regulations), or part 92 of subchapter G of this chapter 
(the Alaska subsistence harvest regulations).'' The term ``person'' is 
defined at 50 CFR 10.12 as ``any individual, firm, corporation, 
association, partnership, club, or private body, any one or all, as the 
context requires.'' These regulations do not identify a federal 
permitting agency as a ``person'' responsible for obtaining a take 
permit, where that federal agency is not actually carrying out the 
activity that may result in the ``take'' of a migratory bird. Likewise, 
the U.S. Fish and Wildlife Service's implementing regulations for the 
Bald and Golden Eagle Protection Act at 50 CFR part 22 do not include 
any provisions stating that Federal permitting agencies are responsible 
for assisting project proponents in obtaining permits to authorize the 
taking, possession, and transportation within the United States of bald 
eagles and golden eagles and their parts, nests, and eggs.

[[Page 10250]]

    Executive Order 13186 discusses the responsibilities of Federal 
agencies to protect migratory bird for the purposes of the Migratory 
Bird Treaty Act. The Executive Order applies only to those actions that 
are directly carried out by Federal agencies (see Section 2, paragraph 
(h)). Actions carried out by non-Federal entities with Federal 
assistance are not subject to the Executive Order. Department of the 
Army permits can be considered a form of Federal assistance since they 
provide authorization to non-Federal entities to comply with Federal 
laws such as Section 404 of the Clean Water Act and Section 10 of the 
Rivers and Harbors Act of 1899.
    This general condition is adopted.
    GC 20. Historic Properties. We proposed to modify paragraph (c) of 
this general condition to make a more general reference to the Corps 
Regulatory Program's current procedures for compliance with Section 106 
of the National Historic Preservation Act, since we are using Appendix 
C to 33 CFR part 325, as well as various guidance documents to address 
the Advisory Council on Historic Preservation's revised regulations at 
36 CFR part 800.
    In response to the February 16, 2011, proposal to reissue the NWPs, 
including the proposed modification of this general condition, we 
received comments on the Corps use of Appendix C and the current 
guidance. Concerns regarding the use of Appendix C and the current 
guidance are outside the scope of the NWP rule, and are not addressed 
in this rule.
    Several commenters asked whether an NWP authorization or 
verification would be issued before a State Historic Preservation 
Officer concurs to an effect determination or formalizes an agreement 
regarding historic properties. One commenter stated that although the 
NWP regulations provide that the Corps may issue an NWP before a 
memorandum of agreement is executed, district engineers have, in some 
cases, not issued NWP verifications without State Historic Preservation 
Officer concurrence.
    This general condition requires non-Federal permittees to submit 
pre-construction notifications if the NWP activity may have the 
potential to cause effects to historic properties. In such cases, the 
district engineer will initiate section 106 consultation with the 
appropriate State Historic Preservation Officer or Tribal Historic 
Preservation Officer. Further consultation may be conducted with the 
Advisory Council on Historic Preservation, if necessary. The 
prospective permittee may not begin the NWP activity until the district 
engineer notifies him or her that the section 106 consultation has been 
completed (which may include execution of a memorandum of agreement to 
address adverse effects or the concurrence of the State or Tribal 
Historic Preservation Officer), or the activity has no potential to 
cause effects to historic properties.
    One commenter said the Corps should more closely follow paragraph 
(b) of the general condition and not require redundant section 106 
review on projects that are being undertaken by another Federal agency. 
Three commenters suggested that the Corps section 106 responsibilities 
should be satisfied if another Federal agency formally accepts 
responsibility for conducting section 106 consultation and is the lead 
for this responsibility through either a programmatic agreement or on a 
project-by-project basis. One commenter said that duplicate regulatory 
efforts are unnecessary, particularly when another Federal agency has a 
lead role.
    District engineers will generally accept another Federal agency's 
compliance with section 106, but there may be situations where that 
agency's section 106 compliance does not adequately address the 
activities authorized by an NWP and their effects on historic 
properties. In those situations, the district engineer may conduct 
additional section 106 consultation to satisfy the requirements of the 
National Historic Preservation Act. We have added a sentence to 
paragraph (b) to address these situations.
    One commenter said the general condition does not clearly specify 
who is responsible for the identification and evaluation of historic 
properties and determination of effects. Another commenter stated that 
the general condition does not adequately ensure section 106 compliance 
because the Corps may not receive enough information from permittees to 
fully take into account the effect a project may have on a historic 
property. This commenter also said that while paragraph (c) states that 
prospective permittees may seek assistance from the State or Tribal 
Historic Preservation Officer and from the National Register of 
Historic Places, there is no requirement that an applicant consult with 
these parties or that an applicant coordinate an effect determination 
with a qualified professional with relevant historic properties 
experience.
    The Corps is ultimately responsible for determining compliance with 
the requirements of Section 106 of the National Historic Preservation 
Act. Non-Federal permittees are required to submit pre-construction 
notifications if an NWP activity may have the potential to cause 
effects to historic properties, and the district engineer will evaluate 
those pre-construction notifications to determine if section 106 
consultation is necessary. The general condition also states that 
district engineers will make reasonable and good faith efforts to 
identify historic properties and effects on those properties. The 
district engineer may request additional information from the applicant 
where necessary to evaluate potential effects of the activity on 
historic properties or to initiate section 106 consultation. We cannot 
require prospective permittees to seek assistance from a State Historic 
Preservation Officer or a Tribal Historic Preservation Officer, search 
the National Register of Historic Preservation, or consult with 
qualified historic property professionals. However, this general 
condition requires prospective permittees to provide a list of `` * * * 
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,'' if 
these properties may be affected. The permittee may obtain such 
information from the State Historic Preservation Officer or Tribal 
Historic Preservation Officer, the National Register of Historic 
Places, or other sources of information on historic properties.
    One commenter recommended providing language to clearly state when 
a pre-construction notification is or is not required based on the 
presence or absence of known historic properties. This commenter 
suggested that if a prospective permittee independently determines that 
no historic properties exist within the boundaries of the project area, 
then pre-construction notification is not necessary. The commenter also 
said that if the district engineer has to be notified because of 
potential effects to historic properties, the notification should not 
be in the form of a pre-construction notification.
    We do not agree that the general condition should be modified to 
explicitly state that prospective permittees do not have to submit pre-
construction notifications if they determine there are no known 
historic properties within the boundaries of the project area. Such a 
provision would be inappropriate, because there could be visual or 
noise effects to historic properties outside of the project area that 
have to be evaluated through the section 106 consultation process. The

[[Page 10251]]

current general condition is the proper approach, in which the 
prospective permittee seeking NWP authorization is required to submit a 
pre-construction notification if the proposed activity might have the 
potential to cause effects to any historic property listed in, or 
eligible for listing in, the National Register of Historic Places, 
including previously unidentified properties. A pre-construction 
notification is the appropriate mechanism to notify the district 
engineer, because it contains information necessary to begin the 
evaluation process, to determine whether the proposed activity 
qualifies for NWP authorization.
    One commenter requested clarification of what constitutes the 
permit area for the purposes of consultation under Section 106 of the 
National Historic Preservation Act. One commenter asked if a permittee 
is obligated to have the Corps review an archaeologist's determination 
that an activity will not impact an historic site. One commenter stated 
that the general condition is unreasonable and violates federalism.
    The criteria for identifying the permit area for the purposes of 
section 106 are provided in paragraph 1(g) of Appendix C to 33 CFR part 
325, in addition to paragraph 6(d) of the April 25, 2005, interim 
guidance. The permit area will be determined on a case-by-case basis by 
the district engineer. When a professional cultural resource manager or 
archaeologist performs an investigation or makes an effect 
determination, the Corps will generally consider the qualifications of 
the professional and will review any documentation provided for the 
purposes of section 106 compliance. This general condition is required 
because the NWP program must comply with the National Historic 
Preservation Act, a Federal law. Even though most NWP activities occur 
on private land, compliance with applicable Federal laws is necessary. 
This general condition would not interfere with any state or local 
authorities.
    This general condition is adopted with the modifications discussed 
above.
    GC 21. Discovery of Previously Unknown Remains and Artifacts. We 
proposed this new general condition to address circumstances where 
previously unknown or unidentified historical or archaeological remains 
are discovered while conducting the NWP activity.
    Several commenters expressed support for adding this general 
condition to the NWPs. Two commenters said the condition should refer 
to the district engineer instead of ``this office'' or ``we.'' We have 
made these changes to be consistent with the language found in other 
general conditions.
    One commenter stated that the proposed condition relies on the 
permittee, who is generally not qualified to make determinations 
concerning remains and artifacts discovered during construction 
activities. This commenter said that this general condition should 
require all work to cease immediately and a qualified Corps 
archaeologist should initiate required consultation.
    We believe the revised language in the condition clearly indicates 
that the Corps will initiate consultation in such instances where a 
previously unknown historic or archaeological remain is discovered 
during construction activities. The Corps does not have the authority 
to prohibit all construction activities on the site in these cases.
    Several commenters expressed concern with the use of the term 
``artifact'' in this general condition, and some of them stated that it 
can have too broad of a definition. One commenter requested 
clarification as to what constitutes an ``artifact.'' Another commenter 
said that this general condition should have thresholds to protect 
significant artifact deposits while allowing work to continue when only 
minor artifacts are discovered. One commenter suggested that we qualify 
``artifacts'' by adding ``artifacts that are potentially eligible for 
the National Register of Historic Places.''
    The use of the term artifact is consistent with the definition of 
``historic property'' at 36 CFR 800.16, which states that historic 
properties include `` * * * artifacts, records, and remains that are 
related to and located within [historic] properties.'' Procedures for 
the protection of historic properties address all properties that may 
be eligible for inclusion in the National Register of Historic Places, 
and do not establish quantitative thresholds for when section 106 
consultation must occur. The consultation threshold is an effects-based 
threshold. We do not believe it is necessary to add text clarifying 
that artifacts are those ``that are potentially eligible for the 
National Register of Historic Places.'' Eligibility determinations will 
be made after the discovery of artifacts and remains.
    Three commenters stated that the proposed general condition is more 
restrictive than general condition 3 provided in Appendix A to 33 CFR 
part 325, the permit form for individual permits. These commenters said 
the NWP general condition should not be more restrictive than the 
standard permit condition. Two commenters suggested deleting this 
general condition because provisions for the discovery of unknown 
historic or archaeological remains are already codified in the NWP 
regulations and in the Corps Regulatory Program's implementing 
regulations for Section 106 of the National Historic Preservation Act.
    The proposed general condition is similar to general condition 3 in 
Appendix A of 33 CFR part 325. For this new NWP general condition, we 
have taken the text of general condition 3 in Appendix A and modified 
it to include Tribes. We have also modified it by adding a provision 
requiring, to the maximum extent practicable, avoidance of construction 
activities that could affect the remains and artifacts. We believe the 
latter provision is necessary to protect those artifacts and remains as 
much as possible. The addition of Tribes to the condition reflects 
current section 106 procedures. This general condition can be more 
restrictive than the standard permit condition in Appendix A because 
the NWPs may only be used to authorize activities with minimal adverse 
effects on the aquatic environment and other applicable public interest 
review factors. While 33 CFR 330.4(g)(3) contains a similar provision, 
we believe the general condition is needed to comply with applicable 
cultural resource laws.
    Several commenters expressed concern with requiring the permittee 
to stop work once previously unknown historic or archaeological remains 
are found. One commenter said this provision is too unpredictable and 
may result in significant delays. One commenter suggested adding time 
frames to this general condition to provide predictability and assure 
permittees that the Corps will proactively seek to resolve any 
outstanding historic property issues. One commenter recommended 
clarifying this general condition to state that if a discovery occurs, 
work should cease only in the area containing remains or artifacts. One 
commenter objected to the work stoppage provision, stating that once 
construction begins, substantial investment has been made and the 
requirement to stop construction indefinitely upon the discovery of a 
potentially insignificant archaeological resource represents an 
unacceptable financial risk. This commenter recommended that if we keep 
this provision as proposed, we impose time frames on identification and 
consultation in order to provide some predictability to the process.
    We believe it is necessary to include a provision in this general 
condition to require the permittee, once any

[[Page 10252]]

previously unknown historic, cultural, or archeological remains or 
artifacts are found while conducting the NWP activity, to avoid 
construction activities that could affect those remains and artifacts, 
to the maximum extent practicable. We recognize that in some 
circumstances it may not be possible to avoid further construction 
activities that might affect the remains and artifacts, because those 
construction activities may have to be completed for safety or 
minimizing erosion and sedimentation. In addition, the Corps does not 
have the legal authority to stop construction activities. We have 
replaced the phrase ``stop activities that would adversely affect 
those'' with ``avoid construction activities that could affect the'' to 
protect those remains and artifacts as much as possible while 
preventing other adverse environmental effects from occurring, such as 
the installation of sediment and erosion control devices to reduce or 
eliminate sediment inputs to wetlands, streams, and other waters while 
the necessary Federal, Tribal, and state coordination is conducted. It 
would not be appropriate to impose timeframes in this general 
condition, because the amount of time to complete coordination will 
vary across the country and from case to case. We cannot remove the 
provision for avoiding construction activities that could affect the 
remains and artifacts, because Section 106 of the National Historic 
Preservation Act and other cultural resource laws impose binding 
requirements on the Corps and other federal agencies.
    A few commenters said this general condition should not apply to 
other Federal agencies with section 106 responsibilities if they are 
the permittees, since their implementing regulations already contain 
provisions for the discovery of previously unknown historic or 
archaeological remains during construction.
    We agree that in cases where another federal agency is the lead 
Federal agency for purposes of compliance with Section 106 of the 
National Historic Preservation Act, that Federal agency should follow 
its procedures for addressing post-review discoveries. However, the 
Corps also has section 106 responsibilities if the NWP activity has the 
potential to cause effects to an historic property. As long as the lead 
Federal agency is in compliance with section 106 requirements and this 
compliance satisfies section 106 requirements for the NWP 
authorization, the Corps can rely on the lead Federal agency's 
compliance efforts. Upon notification, the district engineer will let 
the other Federal agency know if any further action by the Corps is 
necessary.
    This general condition is adopted with the modifications discussed 
above.
    GC 22. Designated Critical Resource Waters. We proposed to modify 
this general condition to clarify the types of waters subject to the 
general condition by changing how NOAA's marine sanctuaries are 
described, which categories of critical resource waters are always 
subject to this general condition, and how additional critical resource 
waters can be designated by a district engineer after a public notice 
and comment process. We also proposed to add proposed new NWPs A and B, 
now designated NWPs 51 and 52, respectively, to the list of NWPs in 
paragraph (a).
    Several commenters objected to allowing state-designated 
outstanding national resource waters to be automatically included as 
designated critical resource waters because of varying designations and 
criteria across the states. These commenters also said that a state's 
process to designate such waters may not include the opportunity for 
public comment and that the designations carry no legal basis. In 
addition, commenters indicated there are inconsistent approaches by 
different agencies within the same state for designating outstanding 
national resource waters. Some commenters said that other state 
programs, such as those that are responsible for Clean Water Act 
Section 401 water quality certifications, are capable of adequately 
addressing the effects of the activity to these state designated 
waters. One commenter requested a definition of outstanding national 
resource waters. Two commenters said such waters should have a 
particular environmental or ecological significance. Two commenters 
objected to including outstanding national resource waters 
automatically because that designation may be based only on 
recreational characteristics. Three commenters suggested that the 
general condition should be changed to require the district engineer to 
designate such waters only after issuing a public notice and soliciting 
comment, and then obtaining concurrence from the state.
    This general condition was first adopted in the NWPs issued on 
March 9, 2000 (see 65 FR 12872). In the preamble to the 2000 NWPs, we 
stated that `` * * * outstanding national resource waters must be 
identified and approved by the district engineer after public notice 
and opportunity for comment'' (65 FR 12873, third column). In that 
notice, we also said that state or local officials should not be able 
to designate additional waters as critical resource waters without the 
district engineer providing an opportunity for public notice and 
comment. We are modifying this general condition to return to our 
original approach, since there is much disparity across the country in 
how outstanding national resource waters are identified and designated. 
Because of the inconsistency in how outstanding national resource 
waters are designated, we believe it is necessary to provide the public 
with the opportunity to review and comment on those waters before they 
become adopted as designated critical resource waters for the purposes 
of this general condition. Outstanding national resource waters should 
have environmental and ecological significance, and their designation 
should not be based solely on recreational uses or characteristics.
    Three commenters expressed concern that providing district 
engineers the ability to designate, after notice and opportunity to 
comment, additional waters officially designated by a state as having 
particular environmental or ecological significance would lead large 
areas of state-designated waters of all types to be removed from being 
eligible for the NWPs. One commenter said this general condition should 
be removed because it violates the principles of federalism in 
Executive Order 13132. This commenter said a district engineer could 
use state stream designations to identify critical resource waters and 
override the rights of states to interpret and enforce their own laws.
    We are retaining the provision that allows district engineers to 
designate additional critical resource waters after notice and 
opportunity for public comment. That process is not substantially 
different from using the regional conditioning process to restrict or 
prohibit the use of NWPs in specific waters or geographic areas, which 
can be delegated by division engineers to district engineers. This 
general condition is not contrary to Executive Order 13132. The general 
condition helps support the objective of the Clean Water Act, which is 
to restore and maintain the physical, chemical, and biological 
integrity of the Nation's waters. In addition, this general condition 
helps ensure that the NWPs authorize only those activities that have 
minimal individual and cumulative adverse effects on the aquatic 
environment. This general condition only applies to waters and wetlands 
that are both waters of the United States and designated critical 
resource waters.
    One commenter objected to removing state natural heritage sites 
from

[[Page 10253]]

automatic inclusion in the general condition due to their interest in 
maintaining the existing protection the general condition provides to 
areas of unique ecological significance. Another commenter supported 
the proposed change. One commenter said state natural heritage sites 
should not be automatically considered critical resource waters because 
the term is undefined. Another commenter suggested that state natural 
heritage sites should be limited to those sites that are identified 
through state legislation. One commenter opposed including state 
natural heritage sites as potentially being classified as critical 
resource waters and suggested that the Corps continue to defer to State 
Historical Preservation Officers to determine effects on historic 
sites.
    While we understand the perspective that state natural heritage 
sites should be automatically subject to this general condition, we 
also understand the need for transparency and clarity for the regulated 
public. Given the variability in waters and wetlands that may be 
designated as state natural heritage sites, and the different processes 
that may be used by states to designate their natural heritage sites, 
we believe it is necessary to provide a public notice and comment 
process before including state natural heritage sites as designated 
critical resource waters under this general condition. This approach 
will help improve compliance with the NWP conditions, because it will 
make project proponents aware of certain restrictions for the use of 
specific NWPs. The protection of historic properties is more 
appropriately addressed through general condition 20, historic 
properties.
    One commenter said the use of an NWP should not be prohibited in 
critical resource waters when the agency responsible for managing those 
critical resource waters is conducting the activity. This commenter 
also suggested that the general condition should not prohibit the use 
of NWPs, but instead the NWPs listed in paragraph (a) should be moved 
to the notification provision of paragraph (b) and also require the 
approval of the agency that manages the designated critical resource 
water, similar to the approach taking in general condition 16, wild and 
scenic rivers. One commenter supported protecting critical resource 
waters but suggested that protection can be provided instead by 
requiring prior written approval through a state's water quality 
agency. Another recommended requiring water quality certifications for 
the NWPs listed in paragraph (b) instead of pre-construction 
notifications, to ensure that the activities authorized by those NWPs 
result in minimal adverse effects on designated critical resource 
waters and adjacent wetlands.
    The purpose of the prohibition in paragraph (a) of this general 
condition is to exclude the use of those NWPs in critical resource 
waters that have the potential to result in more than minimal adverse 
effects on the aquatic environment. The status of the entity who would 
be conducting the proposed discharge of dredged or fill material is not 
relevant to the minimal adverse effects determination; instead, it is 
the environmental effects of the discharge that have to be considered. 
Discharges of dredged or fill material into waters of the United States 
that are designated critical resource waters, as well as their adjacent 
wetlands, may be authorized by other forms of Department of the Army 
permits, such as individual permits or regional general permits. Wild 
and Scenic Rivers referenced in general condition 16 are those waters 
that have been designated as such in accordance with the Wild and 
Scenic Rivers Act of 1968, a federal law. Similar to state-listed 
threatened and endangered species, the NWP program cannot be used to 
ensure compliance with other state or local laws. However, an NWP 
authorization does not obviate the need for the permittee to obtain 
other federal, state, or local authorizations, including specific 
authorizations related to state-protected critical resource waters. The 
water quality certification process would not be an appropriate 
alternative to the pre-construction notification requirement in 
paragraph (b) of this general condition because the evaluation of an 
NWP pre-construction notification involves consideration of more than 
water quality issues.
    One commenter suggested that pre-construction notifications for NWP 
activities listed in paragraph (b) proposed in waters identified as 
critical resources through state processes, should only be coordinated 
with state authorities. This commenter said the pre-construction 
notification for simple maintenance and improvement projects creates 
unnecessary work for the project proponent and the Corps. One commenter 
recommended adding a list of conservation areas to the general 
condition, with a requirement that permittees must be in compliance 
with the site specific management plan of the conservation area.
    The district engineer will evaluate the pre-construction 
notification for an NWP listed in paragraph (b) of this general 
condition, to determine if the proposed activity will result in minimal 
adverse effects on the aquatic environment, including the critical 
resource water and its adjacent wetlands. Agency coordination is only 
required for NWP activities that result in the loss of greater than \1/
2\-acre of waters of the United States. None of the NWPs listed in 
paragraph (b) have the 300 linear foot limit for the loss of stream 
beds, so the agency coordination threshold for requests for written 
waivers for the loss of greater than 300 linear feet of intermittent or 
ephemeral stream bed would not be triggered. We do not agree that 
conservation areas should be added to the general condition at the 
national level, because what constitutes a ``conservation area'' is 
likely to vary across the country. District engineers may add specific 
aquatic conservation areas that meet the definition of critical 
resource waters to this general condition after a public notice and 
comment process.
    The general condition is adopted as proposed.
    GC 23. Mitigation. We proposed to modify paragraph (g) to be more 
consistent with the compensatory mitigation regulations at 33 CFR part 
332, by replacing the word ``arrangements'' with ``programs'' in 
describing in-lieu fee programs and replacing the phrase ``activity-
specific'' with ``permittee-responsible'' when referring to 
compensatory mitigation implemented by the permittee. In addition, we 
proposed to add a provision stating that for activities resulting in 
the loss of marine or estuarine resources, permittee-responsible 
compensatory mitigation may be environmentally preferable if there are 
no mitigation banks or in-lieu fee programs in the area that have 
marine or estuarine credits available for sale or transfer to the 
permittee. Finally, we proposed to revise the last sentence of 
paragraph (g) to state that the party responsible for providing the 
required permittee-responsible mitigation, including any required long-
term management, is to be identified in conditions added to the NWP 
authorization. Several commenters supported these proposed changes. One 
commenter commended the Corps for the flexibility in determining 
compensatory mitigation requirements.
    One commenter stated that paragraph (a) should indicate that when 
another Federal agency has determined that the activity has been 
designed to avoid and minimize impacts the district engineer will defer 
to that agency's determination. Several commenters said this general 
condition does not adequately stress avoidance of aquatic resources 
before compensatory mitigation is considered. One

[[Page 10254]]

commenter also said the general condition should refer to the measures 
provided in the 404(b)(1) Guidelines for details on avoiding and 
minimizing impacts. This commenter also suggested that the prospective 
permittee should be required to document the steps taken to avoid and 
minimize impacts, and describe them in the pre-construction 
notification. In addition, the commenter said that the NWPs should only 
authorize discharges of dredged or fill material into special aquatic 
sites when the activity is water dependent or in cases where the 
prospective permittee clearly demonstrates there are no practicable 
alternatives available. One commenter stated that the practicable 
alternative test in the Section 404(b)(1) Guidelines should be used for 
NWP activities.
    The district engineer determines compliance with the terms and 
conditions of the NWPs, including whether the permittee has avoided and 
minimized adverse effects to waters of the United States to the maximum 
extent practicable on the project site. The general condition imposes 
substantive requirements to avoid and minimize adverse effects to 
waters of the United States, and district engineers will review pre-
construction notifications and determine whether project proponents 
have satisfied the avoidance and minimization requirement, as well as 
other applicable provisions of this general condition. District 
engineers will also determine if proposed activities result in minimal 
adverse effects on the aquatic environment and qualify for NWP 
authorization. General permits only need to comply with section 230.7 
of the 404(b)(1) Guidelines, which provides the evaluation process for 
the issuance of Clean Water Act Section 404 general permits, including 
NWPs. Individual activities that qualify for NWP authorization do not 
have to implement the avoidance and minimization measures provided 
elsewhere in the 404(b)(1) Guidelines, although they must still comply 
with the avoidance and minimization provisions of this general 
condition, which are designed to ensure that the NWPs collectively 
comply with the 404(b)(1) Guidelines. Requiring the permittee to 
provide documentation of avoidance and minimization measures taken 
would result in unnecessary paperwork requirements, and the current 
information requirements for complete pre-construction notifications 
are sufficient. Section 230.7(b)(1) of the 404(b)(1) Guidelines states 
that the alternatives analyses required by section 230.10(a) are not 
directly applicable to general permits.
    One commenter stated the general condition should address other 
aspects of mitigation, such as performance standards, monitoring, and 
contingency actions. One commenter said the general condition does not 
comply with 33 CFR part 332 because it does not provide any criteria or 
performance standards for compensatory mitigation. One commenter 
indicated that monitoring must be required for all mitigation.
    We have made several changes to this general condition to make it 
consistent with the applicable provisions in 33 CFR part 332. We have 
also added a sentence to paragraph (c)(1) of this general condition to 
state that compensatory mitigation projects to offset losses of aquatic 
resources must comply with the applicable provisions of 33 CFR part 
332. The general condition provides basic requirements, since the 
specific details for compensatory mitigation projects (e.g., 
objectives, ecological performance standards, monitoring requirements, 
and site protection) are determined on a case-by-case basis by district 
engineers. We acknowledge that monitoring is required for all 
compensatory mitigation projects, in accordance with 33 CFR 332.6.
    Two commenters stated that the district engineer should have 
discretion to determine what, if any, compensatory mitigation is 
required for projects impacting more than \1/10\-acre of wetlands, as 
in some cases, compensatory mitigation may not be necessary, and 
mitigation ratios of less than one-for-one may be adequate. One 
commenter said that the Corps cannot require mitigation for NWP 
activities that result in minimal adverse environmental effects, even 
if there are wetland losses greater than \1/10\-acre, and requested 
that the Corps change the first sentence of paragraph (c) to state that 
the mitigation requirement can be waived if the district engineer 
determines that the impacts of the proposed activity are minimal or 
some other form of mitigation would be more environmentally 
appropriate. Several commenters stated that compensatory mitigation 
should be required for all NWP activities, and all resource types, 
regardless of the amount of impact.
    The 2008 compensatory mitigation rule (33 CFR part 332, as 
published in the April 10, 2008, edition of the Federal Register (73 FR 
19594)) established standards and criteria for all compensatory 
mitigation projects required to offset losses of aquatic resources. The 
standards and criteria apply to all sources of compensatory mitigation, 
including permittee-responsible mitigation, mitigation banks, and in-
lieu fee programs. As stated in 33 CFR 332.1(b), the 2008 rule does not 
change the circumstances under which compensatory mitigation is 
required. The NWP regulations at 33 CFR 330.1(e)(3) stipulate when 
compensatory mitigation is to be required for NWP activities--that is, 
when the district engineer determines the individual and cumulative 
adverse environmental effects are more than minimal. The requirements 
at 33 CFR part 332 may affect the practicability of providing 
compensatory mitigation for all NWP activities that result in the loss 
of \1/10\-acre to \1/2\-acre and require pre-construction notification, 
especially if the NWP activity is not in the service area of an 
approved mitigation bank or in-lieu fee program with released or 
advance credits available at the time the NWP pre-construction 
notification is being evaluated by the district engineer.
    In the 2008 mitigation rule, we also discussed our concerns about 
the failure rates of on-site compensatory mitigation, which are often 
not ecologically successful because of nearby changes in land use (see 
73 FR 19601). We believe it would be inappropriate to require users of 
the NWP to provide small on-site compensatory mitigation projects to 
offset losses caused by NWP activities if they are likely to fail. If 
the district engineer determines that on-site mitigation is likely to 
be ecologically successful, he or she may require that compensatory 
mitigation. It may not be practicable to provide off-site compensatory 
mitigation if the activity is not in the service area of an approved 
mitigation bank or in-lieu fee program with available credits. It is 
also important to recognize that not all areas of the country have 
approved mitigation banks or in-lieu fee programs. If the district 
engineer determines that compensatory mitigation is necessary to ensure 
than an NWP activity results in minimal individual and cumulative 
adverse effects on the aquatic environment, and there are no 
practicable and ecologically successful compensatory mitigation options 
available, then he or she will exercise discretionary authority and 
notify the project proponent that another form of Department of the 
Army authorization is required, such as an individual permit.
    To be consistent with 33 CFR 330.1(e)(3), and to take into account 
how the requirements of 33 CFR part 332 affect the practicability for 
providing compensatory mitigation for small wetland losses, we have 
modified paragraph (c) of this general condition

[[Page 10255]]

to state that the district engineer will evaluate the pre-construction 
notification and may not require compensatory mitigation for losses of 
greater than \1/10\-acre of wetlands if he or she determines that 
either alternative mitigation (such as additional avoidance and 
minimization of impacts to waters of the United States on the project 
site) would ensure that the NWP activity results in minimal individual 
and cumulative adverse effects on the aquatic environment, or the 
impacts of the proposed activity are minimal without compensatory 
mitigation and determines the compensatory mitigation would not be 
required. We do not agree that compensatory mitigation should be 
required for all activities authorized by NWPs. For example, 
compensatory mitigation may not be needed to ensure that the authorized 
activity results in minimal adverse effects on the aquatic environment. 
In addition, not all NWP activities require pre-construction 
notification, and the pre-construction notification thresholds are 
established so that those NWP activities that generally do not result 
in more than minimal adverse effects on the aquatic environment can 
proceed without review by the district engineer. To address exceptions 
in specific waters or geographic areas, division engineers may add 
regional conditions to an NWP to lower its pre-construction 
notification threshold or require pre-construction notification for all 
activities authorized by that NWP.
    One commenter stated that greater than one-for-one mitigation 
ratios must be required, stream mitigation ratios should address both 
areal and linear extent, and waivers of the mitigation ratio should not 
be allowed. One commenter stated that stream or open water mitigation 
should have a mandatory mitigation ratio of one-for-one for in-kind 
replacement and two-for-one riparian habitat improvement for any 
impacts exceeding 50 feet of any stream or waterbody. One commenter 
stated that mitigation should be required for all stream impacts that 
exceed 100 feet. One commenter stated that appropriate in-kind 
mitigation should be provided for any wetland or stream impacts. One 
commenter also stated that out-of-kind mitigation contradicts the no-
net-loss policy.
    The amount of compensatory mitigation necessary to ensure that the 
NWP activity results in minimal adverse effects on the aquatic 
environment is determined by the district engineer on a case-by-case 
basis by applying the provisions at 33 CFR 332.3(f). The district 
engineer will determine whether compensatory mitigation for losses of 
stream bed should be required for a particular NWP activity. We do not 
agree that losses of stream bed should have a threshold for determining 
when compensatory mitigation should be required for those losses. We 
have modified paragraph (d) of this general condition by replacing the 
word ``restoration'' with ``rehabilitation, enhancement, or 
preservation'' to be consistent with 33 CFR 332.3(e)(3), which 
recognizes streams as ``difficult-to-replace'' resources.
    Out-of-kind mitigation does not contradict the ``no overall net 
loss'' goal for wetlands, since out-of-kind wetlands mitigation may be 
environmentally preferable if another wetland type provided as 
compensatory mitigation would benefit the watershed more than simply 
providing in-kind replacement of the wetland being lost as a result of 
the NWP activity.
    One commenter also requested that consideration be given to the 
cumulative impacts of wetland and stream disturbance. Several 
commenters said that mitigation cannot be used to bring the adverse 
effects of the NWPs to a minimal level. Some of these commenters stated 
that mitigation is not predictable and in many cases is not successful. 
Two commenters stated that if an NWP activity requires mitigation, then 
by definition it has more than minimal adverse environmental effects.
    Cumulative effects to wetlands and streams are evaluated in the 
decision documents that are prepared for each NWP by Corps 
Headquarters, as well as the supplemental decision documents approved 
by division engineers. Wetland restoration, enhancement, establishment, 
and preservation activities, and stream rehabilitation, enhancement, 
and preservation activities (including and riparian area restoration, 
enhancement, and preservation) can offset losses of aquatic resource 
functions provided by waters of the United States that are impacted by 
activities authorized by NWPs. District engineers evaluate compensatory 
mitigation proposals provided by prospective permittees, to determine 
whether the compensatory mitigation project will be ecologically 
successful and be sufficient to offset losses of waters of the United 
States to ensure that the net adverse effects on the aquatic 
environment are minimal. The approved mitigation plan must include the 
applicable components listed in 33 CFR 332.4(c)(2)-(14), including 
ecological performance standards used to determine if the compensatory 
mitigation project is achieving its objectives.
    The party responsible for providing the compensatory mitigation 
must implement the approved mitigation plan, and if it is determined 
that changes are needed to improve ecological success, request approval 
of those modifications. After the approved compensatory mitigation 
project is implemented, monitoring is required on a regular basis and 
monitoring reports must be submitted to the district engineer. The 
monitoring reports are reviewed by the district engineer and if there 
are deficiencies in the compensatory mitigation project, the district 
engineer will work with the responsible party to determine what actions 
are necessary to fix the compensatory mitigation project so that it 
will meet its original objectives or comparable objectives that are 
acceptable to the district engineer. If it is not possible to take 
adaptive management measures to remediate the compensatory mitigation 
project, then the district engineer may require alternative 
compensatory mitigation.
    Several commenters said that applicants should be required to 
submit detailed mitigation plans with their pre-construction 
notifications and conceptual mitigation proposals are not sufficient. 
Several commenters also stated that the public should be provided the 
opportunity to review mitigation plans and provide comments on whether 
the impacts will be minimal.
    We have added a new paragraph (c)(1) to state that the prospective 
permittee is responsible for proposing an appropriate compensatory 
mitigation option, if the district engineer determines that 
compensatory mitigation is needed to ensure that the activity results 
in minimal adverse effects on the aquatic environment. Another new 
provision, paragraph (c)(3) of this general condition, states that the 
mitigation plan may be conceptual or detailed, which is consistent with 
the Corps regulations at 33 CFR 332.4(c)(1)(ii). We do not believe that 
public review of compensatory mitigation proposals is necessary. 
District engineers have the expertise to review compensatory mitigation 
plans, evaluate their potential for ecological success, and determine 
whether they will offset losses of aquatic resource functions so that 
the NWP activity, after considering the required compensatory 
mitigation, will result in minimal individual and cumulative adverse 
effects on the aquatic environment.
    One commenter asked whether functional assessments used to assess 
aquatic resources must be approved by the Corps. One commenter said the

[[Page 10256]]

general condition should provide clearer requirements to reduce the 
amount of discretion to be exercised by district engineers. One 
commenter stated that compensatory mitigation should be linked to the 
impacts of the project, and both the compensatory mitigation project 
and the monitoring requirements should last as long as the authorized 
impacts.
    Functional assessments do not have to be formally approved by the 
Corps, although district engineers may determine that a functional 
assessment method proposed to be used for a particular aquatic resource 
or activity is not appropriate. This general condition provides basic 
principles for addressing mitigation requirements for NWP activities, 
because it is not possible to cover all possible mitigation options and 
requirements at the national level. Most activities authorized by NWPs 
result in the permanent loss of waters of the United States, and it is 
not practical or necessary to require permanent monitoring of 
compensatory mitigation projects. The Corps regulations require long-
term protection of compensatory mitigation project sites (see 33 CFR 
332.7(a)(1), and compensatory mitigation projects should be self-
sustaining. Some compensatory mitigation projects may require long-term 
management, if the district engineer determines that long-term 
management is appropriate and practicable.
    One commenter said that paragraph (f) should be revised to include 
the option of restoring riparian areas next to open waters. In 
addition, the commenter stated that the restoration or establishment of 
riparian areas should not be required on both banks of a stream, 
because in some cases the permittee may not have authority or legal 
interest in the land to restore or establish riparian areas on both 
sides of the stream. This commenter noted that there may be conflicting 
easements, roads, levees, or other structures in the proposed riparian 
area, or the area may not support riparian vegetation. One commenter 
stated that the Corps is inconsistent with use of the term buffer and 
riparian areas and that buffer is more inclusive and should be used in 
the general condition instead of riparian areas.
    We have added the term ``restoration'' to the first sentence of 
paragraph (f) to make it clear that the riparian area may either be 
restored or established next to open waters. The general condition does 
not require riparian areas to be established on both sides of a stream. 
The fifth sentence of this paragraph provides a recommended width for 
riparian areas, based on a presumption that the project proponent can 
restore or establish riparian areas on both sides of the stream. If it 
is not possible to establish a riparian area on both sides of a stream, 
or if the waterbody is a lake or coastal waters, then restoring or 
establishing a riparian area along a single bank or shoreline may be 
sufficient, and we have added language to paragraph (f) of general 
condition 23 to clarify that this can be acceptable compensatory 
mitigation. The proposal did not use the term ``buffer'' and paragraph 
(f) focuses on providing mitigation next to open waters through the 
restoration or establishment, maintenance, and legal protection of 
riparian areas.
    One commenter requested that we include the phrase ``for resource 
losses'' at the end of the parenthetical in paragraph (b) to be 
consistent with 33 CFR part 320.4(r)(1). Two commenters stated that it 
is difficult to provide long-term maintenance of mitigation sites for 
weed control and invasive species. One commenter asked that definitions 
for rectifying and reducing be added to the general condition.
    We have added ``for resource losses'' after the word 
``compensating'' in paragraph (b). Before requiring long-term 
management for compensatory mitigation sites, district engineers will 
evaluate whether such a requirement would be practicable, as well as 
appropriate and necessary. We recognize that it may not be appropriate 
and practical to require long-term management for small permittee-
responsible compensatory mitigation project sites, so we have modified 
paragraph (g) to make it clear that long-term management is necessary 
only when the district engineer adds conditions to an NWP authorization 
to require long-term management for the compensatory mitigation 
project. We do not believe it is necessary to provide definitions of 
the terms ``rectifying'' and ``reducing'' since the commonly understood 
definitions of these terms are sufficient.
    One commenter requested the removal of paragraph (h), stating that 
it creates confusion and sometimes results in mitigation being required 
for non-jurisdictional activities, such as non-mechanized, above-ground 
landclearing for overhead electric transmission lines. Another 
commenter said that paragraph (h) implies that the Corps has authority 
over activities it does not regulate, such as the removal of woody 
vegetation from a wetland when there is no discharge of dredged or fill 
material into waters of the United States. One commenter requested 
clarification of the circumstances under which the Corps would require 
compensatory mitigation for the conversion of forested and scrub shrub 
wetlands, and said the phase ``may be required'' should be changed to 
``shall be required.'' This commenter also said that no waivers should 
be allowed for mitigation for projects within a utility right of way 
for forested and scrub shrub wetlands that are permanently converted to 
emergent wetlands.
    Paragraph (h) is being retained, to make it clear that district 
engineers may require compensatory mitigation for permanent losses of 
specific aquatic resource functions that are caused by discharges of 
dredged or fill material into waters of the United States or other 
regulated activities. Paragraph (h) is part of a general condition that 
applies only to activities authorized by NWPs. We do not agree that the 
phrase ``may be required'' should be replaced with ``shall be 
required'' because it is the district engineer's discretion whether to 
require compensatory mitigation for losses of specific aquatic resource 
functions.
    One commenter recommended adding a new paragraph to this general 
condition to clarify that any mitigation requirements must be limited 
to a single and complete linear project. This commenter said that 
compensatory mitigation should only be required if a specific crossing 
of a waterbody triggers paragraph (c), (d), or (f) of this general 
condition, not for other crossings that do not trigger pre-construction 
notification requirements or mitigation requirements.
    We do not believe such an addition to this general condition would 
be appropriate or necessary. As discussed elsewhere in this notice, 
district engineers evaluate the entire linear project, even though each 
separate and distant crossing of waters of the United States may 
qualify for a separate NWP authorization. District engineers may 
require compensatory mitigation for all temporary and permanent losses 
of waters of the United States. District engineers are required to 
consider cumulative adverse effects in reviewing NWP pre-construction 
notifications, not just adverse effects from the specific single and 
complete project to which the notification applies.
    One commenter stated that this general condition does not 
adequately convey the hierarchy of mitigation preference established by 
33 CFR part 332. One commenter stated that in-lieu fee arrangements 
must not be used unless the arrangements comply with the requirements 
of the in-lieu fee guidance. One commenter stated that

[[Page 10257]]

remining of lands results in a net benefit to the aquatic resources, 
and the Corps should consider this remining as adequate compensatory 
mitigation and should consider if it is appropriate to create an in-
lieu fee program for remining of previously mined areas.
    We do not believe it is necessary to include the mitigation options 
evaluation framework provided in 33 CFR 332.3(b), since that regulation 
applies to all forms of Department of the Army permits, and the general 
condition explicitly states that mitigation must comply with part 332. 
In-lieu fee programs used to provide compensatory mitigation for NWP 
activities must comply with the applicable provisions in 33 CFR 332.8, 
unless the district engineer determined that they qualified for the 
extension of the grandfathering provision provided at 33 CFR 
332.8(v)(2). District engineers will determine on a case-by-case basis 
whether compensatory mitigation should be required for remining 
activities authorized by NWP.
    This general condition is adopted with the modifications discussed 
above.
    GC 24. Safety of Impoundment Structures. We proposed to add this 
new general condition to the NWPs. We received no comments on the 
proposed general condition. The general condition is adopted as 
proposed.
    GC 25. Water Quality. We did not propose any changes to the general 
condition. Two commenters recommended modifying this general condition 
to state that activities are not authorized by NWP if the state denies 
water quality certification, unless the project proponent obtains an 
individual water quality certification or water quality certification 
is waived. One commenter suggested adding a provision to state that the 
district engineer will determine, after a reasonable amount of time 
(generally 60 days) from the date an application for an individual 
water quality certification was submitted by the project proponent, 
that water quality certification is waived unless the Corps and the 
water quality certification agency agree that additional time is 
needed. A few commenters said that individual permits should be 
required for activities in any waters identified as 303(d) listed 
streams.
    We believe that the current wording of this general condition is 
sufficient to make it clear that an individual water quality 
certification or waiver must be obtained if the state, Tribe, or EPA 
had not previously issued water quality certification for an NWP. We 
also do not believe it is necessary to provide a specific timeframe in 
the general condition to reflect the language in 33 CFR 330.4(c)(6), 
since those timeframes may vary by Corps district because of local 
agreements with water quality certification agencies. There are a 
variety of causes of stream impairment for 303(d) listings other than 
discharges of dredged or fill material (e.g., nutrients, metals, 
sedimentation, temperature, bacteria, pH, toxics). Reversing those 
causes of impairment is more appropriately addressed through other 
Clean Water Act programs.
    This general condition is adopted as proposed.
    GC 26. Coastal Zone Management. We received no comments on the 
proposed general condition. The general condition is adopted as 
proposed.
    GC 27. Regional and Case-by-Case Conditions. We received no 
comments on the proposed general condition. The general condition is 
adopted as proposed.
    GC 28. Use of Multiple Nationwide Permits. We received no comments 
on the proposed general condition. The general condition is adopted as 
proposed.
    GC 29. Transfer of Nationwide Permit Verifications. We received no 
comments on the proposed general condition. The general condition is 
adopted as proposed.
    GC 30. Compliance Certification. We proposed a minor change to this 
general condition to clarify that we will provide the permittee with 
the necessary documentation to complete and return to the Corps as the 
signed certification. One commenter expressed support for the proposed 
change.
    Two commenters recommended including regional conditions to the 
list of conditions under paragraph (a). One commenter suggested that a 
separate compliance certification be required for mitigation projects, 
because permittees submit the compliance certification when the work is 
completed, not when the compensatory mitigation project is completed. 
Two commenters said the general condition should be modified to clarify 
that the success of the required compensatory mitigation would be 
addressed separately, after evaluation of monitoring reports 
demonstrates achievement of the performance standards for the 
compensatory mitigation project.
    We have modified paragraph (a) to require the statement to read 
that the authorized work has been done in accordance with any general, 
regional and activity-specific conditions to cover all of the 
conditions that may be applicable to an NWP authorization. We have also 
changed the first paragraph of this general condition by adding a 
sentence to state that the success of any required permittee-
responsible mitigation, including the achievement of ecological 
performance standards, will be addressed separately by the district 
engineer. Paragraph (b) has also been revised by adding a sentence to 
address the use of mitigation bank and in-lieu fee program credits to 
fulfill compensatory mitigation requirements in NWP authorizations. 
This new sentence states that if mitigation bank credits or in-lieu fee 
program credits are used, the permittee must submit the documentation 
required by 33 CFR 332.3(l)(3) to confirm that he or she has secured 
the appropriate number and resource type of credits from the mitigation 
bank or in-lieu fee program.
    One commenter suggested adding language similar to that provided in 
NWP 32, to state that it is necessary to comply with all terms and 
conditions of the NWP, and that the NWP authorization is automatically 
revoked if the permittee does not comply with all terms and conditions. 
One commenter suggested that additional funding be allocated to do more 
on-site compliance inspections. One commenter said there are 
insufficient monitoring and compliance procedures in the NWPs. One 
commenter stated that it should be the permittee's responsibility to 
provide the required proof that the authorized activity was conducted 
to comply with the terms and conditions of the NWP.
    The Note at the beginning of Section C, Nationwide Permit General 
Conditions, adequately addresses the requirement to comply with all 
applicable terms and conditions of the NWPs. Funding for compliance 
inspections is outside of the scope of this rule. Corps districts are 
required, through our performance measures, to conduct initial 
compliance inspections for a minimum percentage of the total number of 
all general permit (including NWP) verifications issued during the 
preceding fiscal year where authorized work is underway. The purposes 
of this general condition is for the permittee to submit documentation 
to the district engineer demonstrating that the authorized activity has 
been implemented in accordance with the conditions of the NWP 
authorization. Each permittee who receives an NWP verification letter 
from the Corps must provide a signed certification documenting 
completion of the authorized activity and any required compensatory 
mitigation.
    This general condition is adopted with the modification listed 
above.
    GC 31. Pre-Construction Notification. We proposed to modify 
paragraph (d)(2) to clarify that all NWP activities

[[Page 10258]]

resulting in the loss of greater than \1/2\-acre of waters of the 
United States require agency coordination. We also proposed to require 
agency coordination for certain NWPs when the proposed activity would 
result in the loss of greater than 1,000 linear feet of intermittent 
and ephemeral stream bed, in cases where the district engineer is 
considering waiving the 300 linear foot limit. Another proposed change 
was to clarify that the district engineer will consider direct and 
indirect effects caused by the NWP activity when making a minimal 
adverse effects determination. We also proposed to provide a list of 
factors to be considered when making minimal effects determinations for 
the purposes of the NWPs. One commenter supported the proposed list of 
factors.
    One commenter objected to adding more pre-construction notification 
requirements, stating that it takes several days to weeks for an 
applicant to prepare pre-construction notification at the high level of 
detail required by district offices. Several commenters stated that 
they did not have the time and resources to prepare a pre-construction 
notifications for all activities. One commenter said the proposed 
changes that require pre-construction notifications for additional 
activities would add to the workload of the Corps for projects that are 
minor in nature.
    We have not substantially increased the number of activities that 
require pre-construction notification. We have issued two new NWPs, and 
although both of those NWPs require pre-construction notification for 
all activities, some of the activities authorized by those NWPs may 
also be authorized by other NWPs that do not require pre-construction 
notification. A prospective permittee may request authorization under a 
specific NWP, if the proposed activity qualifies for authorization 
under that NWP. District engineers have been instructed, through 
Regulatory Program Standard Operating Procedures, to use the most 
efficient permit process wherever possible, to make timely permit 
decisions while protecting the aquatic environment. The two new NWPs 
issued today will provide a more efficient means of authorizing 
renewable energy generation facilities and pilot projects, in cases 
where those activities did not previously qualify for NWP authorization 
and required individual permits instead.
    One commenter expressed concern with delays associated with the 
pre-construction notification process. Several commenters said some 
districts make requests for additional information after the 30-day 
pre-construction notification completeness determination period ends, 
and suggested adding a provision to paragraph (a) to state that all 
requests for additional information must be made within 30 days of 
receipt of a complete pre-construction notification and that districts 
are limited to one request for additional information. One commenter 
said the phrase ``as a general rule'' should be deleted from paragraph 
(a). Several commenters said that in many cases, the district engineer 
fails to describe the specific information that is needed for a pre-
construction notification to be deemed complete. Two commenters 
requested clarification as to whether the activity is authorized by an 
NWP 30 or 45 days after submitting a complete pre-construction 
notification.
    We have added text to the second sentence of paragraph (a) to state 
that district engineers must notify prospective permittees within the 
30-day completeness review period if the pre-construction notification 
is incomplete and additional information has to be provided to the 
district engineer to make the pre-construction notification complete. 
We have also added a sentence that directs the district engineer to 
specify, in his or her request for additional information, what 
information is needed to make the pre-construction notification 
complete. We have retained the phrase ``as a general rule'' in the new 
fourth sentence, which states that district engineers will request 
additional information only once, because there may be occasions where 
it is necessary to make an additional request for information. It 
should be noted that the 30-day period only applies to information 
necessary to make the PCN complete, which is listed in paragraph (c) of 
this general condition. Other types of information may also be needed 
to make a decision on whether the proposed activity qualifies for NWP 
authorization, such as a conceptual or detailed compensatory mitigation 
plan, if the applicant only provided a mitigation statement to satisfy 
the requirement in paragraph (b)(5). A conceptual or detailed 
mitigation plan is needed to determine whether the proposed 
compensatory mitigation will be suitable for ensuring compliance with 
general condition 23, and may be requested after the 30-day 
completeness review period, but before the 45-day pre-construction 
notification review period ends. Another example is request for 
additional information necessary to complete either Endangered Species 
Act Section 7 consultation under general condition 18 or National 
Historic Preservation Act Section 106 consultation under general 
condition 20. Past rulemaking activities for the NWPs have established 
a 45-day pre-construction notification review period for the NWPs, and 
today's final rule retains that time period. Exceptions are for 
compliance with general condition 18, endangered species, and general 
condition 20, historic properties. Under those two general conditions, 
activities that may affect endangered or threatened species or critical 
habitat, or have the potential to cause effects to historic properties, 
are not authorized until the required consultations are completed. 
Another exception is NWP 21, for which activities are not authorized 
until the applicant receives written verification from the Corps.
    One commenter said that ``he or she'' be removed from paragraph 
(a)(1) as it is the only location in which personal pronouns are used. 
Another commenter recommended changing paragraph (a)(2) to state that 
if the permittee does not receive any written notification from the 
district engineer within 45 days of submitting a complete pre-
construction notification, then the permittee can assume that the 
district engineer has made a ``no effect'' determination for endangered 
species or historic properties.
    The use of ``he or she'' is appropriate in paragraph (a)(1) because 
it refers to the prospective permittee, who may be an individual, 
corporation, or other entity. The NWP regulations (see 33 CFR 
330.4(f)(2) for Endangered Species Act compliance and 33 CFR 
330.4(g)(2) for National Historic Preservation Act compliance), as well 
as general conditions 18 and 20, state that the activity is not 
authorized by NWP until the requirements of the Endangered Species Act 
and/or the National Historic Preservation Act have been satisfied. 
Those two provisions in the Corps NWP regulations do not allow a 
prospective permittee to conclude that there is a ``no effect'' finding 
for the purposes of compliance with the Endangered Species Act or a 
``no potential to cause effect'' finding for the purposes of compliance 
with Section 106 of the National Historic Preservation Act if the 
district engineer does not respond to the pre-construction notification 
within 45-days in which the applicant stated there might be effects to 
listed species or designated critical habitat or there may be potential 
to cause effects to historic properties.
    One commenter requested clarification whether the seven items

[[Page 10259]]

identified in paragraph (b) of this general condition are a complete 
list and should not be supplemented. One commenter said that if 
additional requirements are added to the NWP authorization by the 
district engineer after the evaluation of the pre-construction 
notification, those requirements should be subject to public notice and 
comment.
    The seven items listed in paragraphs (b)(1) through (7) of this 
general condition are required for a pre-construction notification. 
Additional information may be needed by the district engineer to make a 
decision on the NWP pre-construction notification, such as a 
compensatory mitigation proposal if the district engineer disagrees 
with the prospective permittee's statement that compensatory mitigation 
is not necessary to ensure the activity results in minimal adverse 
environmental effects, or information needed to conduct Endangered 
Species Act Section 7 or National Historic Preservation Act Section 106 
consultation. Permit conditions added to an NWP authorization by a 
district engineer do not need to go through a public notice and comment 
process because they are incorporated into the authorization to ensure 
compliance with regulatory and statutory requirements that general 
permits only authorize activities that have minimal adverse effects on 
the aquatic environment and other applicable public interest review 
factors. The Corps regulations do not require public notice and comment 
for any conditions added to Department of the Army permits, including 
standard permits, letters of permission, and all categories of general 
permits.
    Two commenters stated that applicants should be required to submit 
detailed mitigation plans with their pre-construction notifications and 
conceptual mitigation proposals are not sufficient. One commenter said 
paragraph (e)(2) should be revised to require the prospective permittee 
to submit a compensatory mitigation proposal if the activity will 
result in the loss of greater than \1/10\-acre of wetlands.
    Paragraph (b)(5) requires the prospective permittee to submit a 
statement explaining how the mitigation requirement will be satisfied 
or why the adverse effects of the proposed activity on the aquatic 
environment are minimal without mitigation. A detailed or conceptual 
mitigation plan may be submitted with the pre-construction 
notification, and a conceptual mitigation plan is usually sufficient 
for making the minimal adverse effects determination. If the proposed 
mitigation shown in the conceptual mitigation plan is acceptable, a 
detailed mitigation plan that complies with the requirements of 33 CFR 
332.4(c)(2)-(14) will be required and must be approved by the district 
engineer before work begins in waters of the United States unless the 
district engineer determines such prior approval is not practicable or 
necessary (see paragraph (c)(3) of general condition 23, mitigation).
    One commenter said that state agencies operating under Federal 
funding should be added to paragraphs (b)(6) and (b)(7), for the 
submittal of documentation demonstrating compliance with Section 7 of 
the Endangered Species Act or Section 106 of the National Historic 
Preservation Act. This commenter also stated that pre-construction 
notifications should be provided electronically as well. One commenter 
said that a pre-construction notification should include information 
demonstrating that a project complies with applicable federal and state 
requirements.
    A state agency operating under Federal funding, where the Federal 
agency has conducted Endangered Species Act Section 7 consultation or 
National Historic Preservation Act Section 106 consultation for the 
activity that is being provided Federal funds, may provide that 
documentation to the district engineer as part of its pre-construction 
notification, but the district engineer will determine whether that 
consultation is sufficient for the NWP activity. The NWP regulations at 
33 CFR 330.1(e)(1) state that pre-construction notifications must be in 
writing. We have modified paragraph (d)(4) to state that prospective 
permittees may also provide electronic files of pre-construction 
notifications to expedite agency coordination. Compliance with other 
Federal, state, or local requirements is the responsibility of the 
permittee, and the Corps does not have the authority to enforce the 
regulatory requirements of programs administered by other agencies.
    Several commenters objected to the requirement for a delineation of 
special aquatic sites and other waters of the United States under 
paragraph (b)(4) of this general condition, because requiring a full 
delineation has become a significant cause of delays and increased 
costs due to uncertainties regarding the extent of Federal 
jurisdictional waters under U.S. Supreme Court decisions in 2001 and 
2006. One commenter said that in the second sentence of paragraph 
(b)(4) the term ``wetland delineation'' should be replaced with 
``delineation of waters of the United States,'' because the requirement 
is for not only a delineation of wetlands but also of other waters of 
the United States. One commenter suggested modifying paragraph (b)(4) 
to clarify that a jurisdictional determination is not required with the 
submittal of a complete pre-construction notification, just a 
delineation of waters of the United States, which would be completed by 
either the prospective permittee or the Corps.
    We have modified paragraph (b)(4) to state that a pre-construction 
notification must include a delineation of wetlands, other special 
aquatic sites, and other aquatic habitats (e.g., perennial, 
intermittent, and ephemeral streams, and lakes and ponds) on the 
project site, instead of a delineation of special aquatic sites and 
other waters of the United States. Use of the term ``waters of the 
United States'' in this paragraph implies that an approved 
jurisdictional determination would have to be done for a NWP pre-
construction notification. An approved jurisdictional determination is 
an official Corps determination that jurisdictional ``waters of the 
United States'' or ``navigable waters of the United States,'' or both, 
are either present or absent on a particular site, and precisely 
identifies the limits of those waters on the project site that are 
determined to be jurisdictional under the Clean Water Act or Sections 9 
and 10 of the Rivers and Harbors Act of 1899 (see Regulatory Guidance 
Letter 08-02). We understand that many users of the NWPs do not want to 
obtain an approved jurisdictional determination, and that preliminary 
jurisdictional determinations may be appropriate for the purposes of 
NWP authorizations.
    Under a preliminary jurisdictional determination, the wetlands, 
other special aquatic sites, and other aquatic habitats on the project 
site are presumed to be waters of the United States for the purposes of 
the NWP authorization, and any compensatory mitigation that may be 
required. A project proponent has the option of requesting an approved 
jurisdictional determination if he or she believes that some or all of 
the wetlands, special aquatic sites, or other aquatic habitats are not 
waters of the United States, and wants an official jurisdictional 
determination from the Corps. A request for an approved jurisdictional 
determination should be submitted to the Corps in advance of submitting 
a pre-construction notification, because the Corps may not be able to 
make an approved jurisdictional determination within the 45-day pre-
construction notification review period, and this NWP rule does not 
contain a provision stating that approved jurisdictional determinations

[[Page 10260]]

are necessary to make a decision on an NWP pre-construction 
notification.
    Several commenters suggested modifying the general condition to 
allow the applicant to satisfy the pre-construction notification 
requirement by demonstrating that consultation under the National 
Historic Preservation Act (NHPA) and/or Endangered Species Act (ESA) 
has been completed and has resulted in a finding that the project would 
not adversely affect resources protected under those statutes. One of 
the commenters also stated that paragraph (e)(1) is incorrect, because 
the condition refers to a limit of 300 feet, but NWP 13 has a limit of 
500 feet that can be waived. One commenter stated that submittal of a 
pre-construction notification should be required for any NWPs within 
303(d) impaired waters and that the applicant should prepare a 
statement identifying how the project avoids contributing to existing 
water quality impairments and maintains consistency with any existing 
Total Daily Maximum Loads (TMDLs).
    Pre-construction notification is required for NWP activities that 
might affect endangered or threatened species listed, or proposed for 
listing, under the Endangered Species Act (see 33 CFR 330.4(f)(2)). 
Likewise, pre-construction notification is required for NWP activities 
that may affect historic properties (see 33 CFR 330.4(g)(2)). It is the 
Corps responsibility to make effect determinations for the purposes of 
the NWP authorizations. Information provided by the project proponent 
for Endangered Species Act or National Historic Preservation Act 
compliance will be fully considered by the district engineer, but it is 
the district engineer's decision as to whether the requirements of 
those acts have been complied with for the NWP authorizations. We have 
determined that modification of paragraph (e)(1) (which has been moved 
to paragraph 1 of Section D, District Engineer's Decision) is not 
necessary, as the 500 linear foot limit for the request for a waiver of 
NWP 13 is ``an otherwise applicable limit'' as specified in this text. 
The state agency that makes water quality certifications for the NWPs 
has the authority to determine whether an NWP should authorize 
discharges into 303(d) impaired waters, so we do not believe pre-
construction notification should be categorically required for all such 
discharges. As noted previously, many waters are impaired for 
pollutants not related to discharges of dredge or fill material.
    Two commenters said that under paragraph (c) of this general 
condition, there are problems with using ENG 4345 for pre-construction 
notifications, because the standard permit form requires information 
that is not listed in paragraphs (b)(2) through (b)(7), and those 
paragraphs also cite information that is not required by ENG 4345.
    The standard permit form, ENG 4345, may be used for pre-
construction notifications, and it is not necessary to fill out those 
fields in ENG 4345 that are not relevant to paragraphs (b)(2) through 
(b)(7). The prospective permittee must supplement ENG 4345 if the NWP 
pre-construction notification must include information that is not 
specifically required by ENG 4345. A permittee is not required to use 
ENG 4345 for pre-construction notification as long as all required 
information is included.
    Several commenters said that the threshold for agency coordination 
should be increased, or that interagency coordination is not necessary. 
In contrast, several commenters stated that the thresholds for agency 
coordination should be decreased. One commenter said agency 
coordination should be required for any activity potentially impacting 
approved mitigation banks, other mitigation areas, or local, state, or 
Federal public properties. One commenter suggested requiring agency 
coordination for NWP 12 activities, because they could result in the 
loss of greater than \1/2\-acre of waters of the United States.
    We believe the agency coordination thresholds established in 
paragraph (d)(2) of this general condition are appropriate, and focus 
on those activities where it would be helpful to solicit the views of 
the listed agencies prior to making a decision on an NWP pre-
construction notification. Potential impacts to mitigation banks, other 
compensatory mitigation project sites, or other public properties are 
more appropriately addressed through the district engineer's review, 
and do not require additional agency coordination under the NWP 
program. However, agency coordination may be required under other 
regulations, such as 33 CFR 332.8, which has an interagency review 
process for the establishment and operation of mitigation banks and in-
lieu fee programs. A proposed activity that may directly affect an 
approved mitigation bank or in-lieu fee project site may require the 
district engineer to consult with an interagency review team before 
making a decision on that activity. The limits for NWP 12 apply to 
single and complete projects, and for each single and complete project 
the NWP 12 activity may not result in the loss of greater than \1/2\-
acre of waters of the United States. As discussed elsewhere in this 
final rule, in response to pre-construction notifications for NWP 12 
activities that are linear projects, district engineers will evaluate 
the cumulative effects of those linear projects on the aquatic 
environment when determining whether authorization by NWP is 
appropriate. We do not believe it is necessary to require agency 
coordination for those linear projects.
    This general condition is adopted with the modifications discussed 
above.

District Engineer's Decision

    We have established a new Section D, District Engineer's Decision, 
by moving paragraph (e) of the proposed general condition 30 (now 
designated as general condition 31) to a separate section of the NWPs. 
We believe this is appropriate because the proposed paragraph (e) does 
not require compliance on the part of the permittee. Therefore, the 
criteria that district engineers use to determine whether a particular 
activity is authorized by NWP should not be in the general conditions. 
The comments received in response to the proposed paragraph (e) of the 
pre-construction notification general condition have been moved to this 
new section.
    Two commenters objected to the language which states that the 
district engineer must determine that the proposed NWP activity is not 
contrary to the public interest. One of these commenters said that 
Section 404(e) of the Clean Water Act does not require such a public 
interest review for NWP activities, and this provision should be 
deleted because it conflicts with other Corps regulations.
    The NWP regulations clearly state that the district engineer may 
exercise discretionary authority if he or she identifies concerns for 
the aquatic environment under the 404(b)(1) Guidelines or for any 
factor of the public interest (see 33 CFR 330.1(d)). In addition, the 
NWP regulations also require the district engineer to review pre-
construction notifications and add conditions to the NWP authorization 
if necessary to ensure that the activity results in minimal individual 
and cumulative adverse effects on the aquatic environment and the 
public interest (see 33 CFR 330.1(e)(2)). The Corps issued those 
regulations under its authority under Section 404 of the Clean Water 
Act and Section 10 of the Rivers and Harbors Act of 1899.
    One commenter suggested adding definitions of the terms ``direct'' 
and ``indirect'' to the NWPs. Two commenters requested clarification on 
when a district engineer can exercise discretionary authority for the 
purposes of the NWP authorization, particularly for those circumstances 
where pre-

[[Page 10261]]

construction notification is not required by the NWP. Several 
commenters said that the district engineer should also evaluate the 
environmental benefits of a project.
    We have added definitions for the terms ``direct effects'' and 
``indirect effects'' to the ``Definitions'' section of the NWPs. 
District engineers have the authority to modify, suspend, or revoke any 
NWP authorization (see 33 CFR 330.1(d) and 33 CFR 330.4(e)(2)) when he 
or she has identified sufficient concerns for the environment or other 
factors of the public interest. District engineers may also consider 
environmental benefits that may result when making a decision as to 
whether an NWP activity results in minimal individual and cumulative 
adverse effects to the aquatic environment.
    One commenter stated that the factors required for a district 
engineer to make a minimal effects determination on a request for a 
waiver of the limits of any NWP suggests a level of analysis that is 
more comparable to the individual permit process, which threatens the 
availability of the NWPs for prospective permittees.
    The evaluation of a request for a waiver of the 300 linear foot 
limit for the loss of intermittent or ephemeral stream bed, or any 
other limit that can be waived by the district engineer, is an 
important tool for maintaining flexibility in the NWP, and authorizing 
activities that result in minimal individual and cumulative adverse 
effects on the aquatic environment. The waiver review process is not 
comparable to the individual permit review process, because it does not 
require a public notice, National Environmental Policy Act 
documentation, and a project-specific 404(b)(1) Guidelines analysis.
    In response to the proposed considerations for making minimal 
effects determination, one commenter suggested adding the type of 
resource that will be affected by the NWP. This commenter also 
recommended defining the term ``minimal effects'' as those effects that 
constitute relatively small changes in the affected environment and 
insignificant changes in ecological function or hydrology. This 
commenter said the minimal effects decision may also depend on whether 
the proposed activity will occur in a special aquatic site, its 
proximity to nesting or spawning areas, the presence of state- or 
federally-listed species of concern other than endangered or threatened 
species, and the amount of permitted or unpermitted aquatic resource 
loss in the same watershed, stream reach, and/or bay or estuary.
    We agree that adding the resource type is appropriate, because the 
minimal effects threshold may be different for a difficult-to-replace 
resource such as a stream, bog, fen, or spring. We do not agree that a 
finding of minimal effects should be based on small changes to the 
affected environment, ecological function, or hydrology. While the NWPs 
have acreage or linear foot limits, or inherent limits based on the 
type of activity authorized, at a small scale those activities result 
in complete losses of ecological function or hydrology because most 
discharges of dredged or fill material into waters of the United States 
replace aquatic areas with dry land. These complete losses of waters of 
the United States often have minimal individual and cumulative adverse 
effects on the aquatic environment. It is the environmental setting and 
other factors listed in the proposed paragraph (e)(1) (which has been 
changed to paragraph (1) of Section D) that are more appropriate for 
making the minimal effects determination. It is also the broader 
watershed or landscape context that is important for determining 
whether minimal adverse effects on the aquatic environment will result. 
Proximity to nesting or spawning areas is more appropriately addressed 
through compliance with general condition 4, migratory bird breeding 
areas, and general condition 3, spawning areas. Division engineers may 
impose regional conditions to restrict or prohibit the use of NWPs to 
authorize activities that may affect state- or federally-listed species 
of concern if they determine, after the public notice and comment 
process, it is in the public interest to add such regional conditions 
to ensure minimal adverse effects. The Corps is required to consider 
effects within a wetland, stream reach, or coastal waterbody that are 
caused either by an individual activity, or cumulatively by many such 
activities authorized by the same NWP, and to determine that such 
effects are minimal before use of an NWP can be authorized.
    We have made additional modifications to the text of this provision 
of the NWPs. In the first paragraph, we have added a sentence stating 
that for linear projects, the district engineer will evaluate the 
individual crossings to determine if they satisfy the terms and 
conditions of the applicable NWP(s), as well as the cumulative effects 
of all the crossings authorized by NWPs. This sentence is consistent 
with the preamble for the NWP final regulation published in the 
November 22, 1991, issue of the Federal Register, in which the 
definition of ``single and complete project'' at 33 CFR 330.2(i) was 
promulgated (see 56 FR 59114).
    In paragraphs (2) and (3) of Section D, we have added text to be 
consistent with the mitigation rule at 33 CFR part 332, with a focus on 
adding activity-specific conditions to the NWP authorization for 
compensatory mitigation requirements. We have also added a provision to 
the end of paragraph (3) stating that the district engineer may 
determine that prior approval of a mitigation plan is not practicable 
or not necessary to ensure timely completion of the required 
compensatory mitigation. This provision is consistent with 33 CFR 
332.3(k)(3).

Definitions

    Best management practices (BMPs). We did not receive any comments 
on the proposed definition. The definition is adopted as proposed.
    Compensatory mitigation. We proposed to modify this definition to 
make it consistent with the definition of this term found in 33 CFR 
332.2. We did not receive any comments on the proposed definition and 
the definition is adopted as proposed.
    Currently serviceable. We did not proposed any changes for this 
definition. We did not receive any comments on the proposed definition. 
The definition is adopted as proposed.
    Direct effects. In response to several comments, we are adding a 
definition of ``direct effects'' to provide clarification to be used 
with paragraph (1) of Section D, District Engineer's Decision. We have 
adapted this definition from the Council of Environmental Quality's 
definition in their National Environmental Policy Act regulations at 40 
CFR 1508.8(a).
    Discharge. The proposed definition included the phrase ``and any 
activity that causes or results in such a discharge.''
    One commenter said that that phrase should be removed because it is 
inconsistent with court decisions on the definition of ``discharge of 
dredged material.'' We inadvertently included the language in the 
proposal, and are removing it from the definition.
    This definition is adopted with the modification discussed above.
    Enhancement. 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 the definition. 
One commenter said the definition should be modified to state that for 
ephemeral streams, flow is also derived from snow melt as well as 
rainfall. One

[[Page 10262]]

commenter requested clarification that the definition of ephemeral 
stream did not include roadside ditches.
    While snow melt may contribute to the flow of ephemeral streams, 
snow melt also contributes to the flow of intermittent and perennial 
streams, especially in areas with deep snow packs. The proposed 
definition appropriately focuses on the duration of flow, and melting 
snow should not be considered a precipitation event since the 
development of snow pack occurs over the course of a winter season. 
Therefore, we are not making the suggested change. Ephemeral streams 
may, in some circumstances, be channelized or relocated to become 
roadside ditches, so we do not agree that recommended change should be 
made.
    The definition is adopted as proposed.
    Establishment (creation). We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    High Tide Line. We proposed to add this as a new definition, based 
on the definition at 33 CFR 328.3(d). One commenter suggested expanding 
the definition of storm surges to include build up of water against a 
coast or a bay by flood waters which cause water levels to exceed 
spring high tide levels.
    We do not agree that the suggested change should be made to this 
definition, because it would make the definition inconsistent with 33 
CFR 328.3(d), which states that storm surges are not to be used to 
identify the high tide line.
    The definition is adopted as proposed.
    Historic property. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Independent utility. We proposed to add ``non-linear'' in the first 
sentence after ``complete'' and before project to reflect the 
independent utility test only applies to single and complete non-linear 
projects.
    One commenter requested that the term ``independent utility'' be 
eliminated from the nationwide permit program because it discourages 
assessment of a project's total impacts. Another commenter asked 
whether the term independent utility applied to both single and 
complete non-linear projects and single and complete linear projects.
    The concept of ``independent utility'' is important for the 
implementation of the NWP program because it provides a useful test to 
help determine whether proposed activities requiring Department of the 
Army authorization should be evaluated together for one permit 
authorization, or may be evaluated separately to determine if each 
activity qualifies for its own permit authorization. Despite the 
independent utility test, the cumulative effects of NWP activities must 
still be evaluated by district engineers when they review pre-
construction notifications or other NWP verification requests. The 
modified definition makes it clear that the independent utility test 
only applies to single and complete non-linear projects; however, 
separate linear projects may have independent utility.
    This definition is adopted as proposed.
    Indirect effects. In response to several comments, we are adding a 
definition of ``indirect effects'' to provide clarification to be used 
with paragraph (1) of Section D, District Engineer's Decision. We have 
adapted this definition from the Council on Environmental Quality's 
definition in their National Environmental Policy Act regulations at 40 
CFR 1508.8(b).
    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 did not propose any changes 
to the definition. One commenter said the loss of stream bed should be 
defined. One commenter suggested revising this definition to state that 
waters of 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, especially as it relates to utility line 
construction. Another commenter said that clarification should be 
provided to state that for the purposes of the NWPs, the loss of waters 
of the United States generally does not include the cleared area along 
the utility line right-of-way between two poles or towers supporting 
overhead power transmission lines. One commenter requested 
clarification of application of this definition to activities in the 
ocean, bays, and Great Lakes, especially in the context of NWP 52 
activities. This commenter recommended stating, for the purposes of NWP 
52, that the loss only applies to the area of the ocean, bay, or Great 
Lakes occupied by wind towers and associated structures such as 
meteorological towers and transformers.
    The proposed definition stated that the loss of stream bed results 
from filling or excavating the stream bed, and we do not believe it is 
necessary to change that definition. The proposed definition also 
stated that 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. That provision may apply to 
temporary impacts to waters of the United States caused by utility 
lines activities, or to any other activity involving temporary filling, 
flooding, excavation, or drainage. While the presence of an overhead 
utility line above waters of the United States does not constitute a 
``loss of waters of the United States,'' the construction of a utility 
line right-of-way for overhead transmission lines may result in losses 
of waters of the United States if it involves discharges of dredged or 
fill material into waters of the United States that cause permanent 
conversions of aquatic areas to dry land or permanent increases to the 
bottom elevation of a waterbody.
    The application of this definition to renewable energy generation 
facilities in coastal waters and the Great Lakes depends on the type of 
activity. A structure installed in these waters is generally not 
considered to result in a loss of waters of the United States, unless 
it is a pile supported structure that is constructed by placing a 
series of piles so closely together that they have the effect of fill 
(see 33 CFR 323.3(c)). If the construction of these facilities and 
associated structures involves the placement of materials that meet 
either the definition of ``discharge of dredged material'' at 33 CFR 
323.2(d) or ``discharge of fill material'' at 33 CFR 323.2(f), such as 
the placement of riprap at the base of a pile supported structure, then 
the area of sea bed or lake bed covered by that dredged or fill 
material would be counted towards the ``loss of waters of the United 
States'' for that activity.
    The definition is adopted as proposed.
    Non-tidal wetland. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Open water. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Ordinary high water mark. We did not propose any changes to the 
definition. One commenter said the definition should state that, for 
flowing waters, the term ordinary high water mark includes the bankfull 
stage or elevation, since this indicator can be readily delineated at 
most locations.
    The bankfull elevation is not a useful tool for identifying the 
ordinary high water marks of streams or rivers in some parts of the 
country, especially the arid west. In the arid west, the Corps

[[Page 10263]]

examines stream geomorphology and vegetation that is responsive to the 
dominant stream discharge to identify the ordinary high water mark for 
intermittent and ephemeral streams (see ``A Field Guide to the 
Identification of the Ordinary High Water Mark (OHWM) in the Arid West 
Region of the Western United States: A Delineation Manual'' published 
by the Corps Engineer Research and Development Center, report number 
ERDC/CRREL TR-08-12, dated August 2008).
    The definition is adopted as proposed.
    Perennial stream. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Practicable. We did not receive any comments on the proposed 
definition. 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 did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Re-establishment. We proposed to modify this definition by adding 
``and functions'' to the end of the last sentence in order to be 
consistent with the definition of this term found in 33 CFR 332.2.
    Two commenters objected to the proposed change. The addition of the 
phrase ``and functions'' makes this definition consistent with the 
definition at 33 CFR 332.2, which was promulgated in 2008. The 
objective of re-establishing aquatic resources is to provide aquatic 
resource functions.
    The definition is adopted as proposed.
    Rehabilitation. We did not propose any changes to this definition. 
One commenter expressed support of this definition. The definition is 
adopted as proposed.
    Restoration. We did not propose any changes to this definition. One 
commenter expressed support of this definition. The definition is 
adopted as proposed.
    Riffle and pool complex. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Riparian areas. We did not propose any changes to this definition, 
and we did not receive any comments on the proposed definition. We have 
changed this definition to more accurately describe where riparian 
areas occur, and what types of features may be found in riparian areas. 
We have replaced the word ``waterbody'' with the phrase ``riverine, 
lacustrine, estuarine, and marine waters,'' since the definition of 
``waterbody'' includes wetlands and wetlands by themselves do not have 
riparian areas. We have also added ``wetlands, non-wetland waters, or'' 
between the words ``adjacent'' and ``uplands'' since riparian areas are 
not limited to uplands. There may be wetlands and non-wetland (open) 
waters such as oxbow lakes and ponds within a riparian area. The 
definition is adopted with the modifications discussed above.
    Shellfish seeding. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Single and complete linear project and single and complete non-
linear project. We proposed to take the definition of ``single and 
complete project'' and split it into two definitions to clarify the use 
the term ``single and complete project'' for linear and non-linear 
projects. Our proposal was based on the definition for ``single and 
complete project'' at 33 CFR 330.2(i) that was provided in the November 
22, 1991, final rule (56 FR 59113).
    Many commenters expressed support for the proposal. Most of these 
commenters also agreed that the independent utility test does not apply 
to single and complete linear projects. They said the proposed 
definitions will remove some of the uncertainty and inconsistencies 
that currently exist with respect to how multiple stream and wetland 
crossings are evaluated for linear projects as opposed to non-linear 
projects. One commenter asked for assurance that these new definitions 
would not materially affect how the Corps evaluates separate crossings 
of tributaries for the purposes the NWP program.
    These two definitions are consistent with the NWP regulations and 
are not expected to have an effect on the Corps current practices for 
implementing the NWP program for both linear and non-linear projects.
    One commenter opposed differentiating between linear and non-linear 
projects for the purposes of the definition of single and complete 
project. One commenter said that references to single and complete 
linear projects and single and complete non-linear projects should be 
removed from the NWPs. One commenter stated that these two definitions 
would complicate the water quality certification process.
    The separate definitions established in today's rule will help 
provide consistent implementation of the NWP program by clarifying how 
the term ``single and complete project'' should be applied for 
different types of activities authorized by NWP. These definitions are 
important for efficient implementation of the Corps Regulatory Program 
and determining whether a particular regulated activity and any related 
regulated activities qualify for NWP authorization. Therefore, we do 
not agree that these terms should be removed from the NWP program. The 
definition of ``single and complete project'' for the NWPs has been in 
place since 1991 and the separate definitions provided in today's final 
rule are consistent with the 1991 definition. Therefore, the use of 
these definitions should not complicate the water quality certification 
process.
    One commenter requested the addition of examples, such as utility 
lines, to the definition of single and complete linear project. One 
commenter asked for clarification on whether the term independent 
utility only applies to non-linear single and complete projects. 
Several commenters said the definition of single and complete linear 
project should preclude district engineers from evaluating separate 
crossings cumulatively.
    The new definitions distinguish between linear and non-linear 
projects and reflect the fact that while each single and complete non-
linear project must have independent utility, each single and complete 
linear project need not have independent utility within the overall 
linear project. However, separate linear projects may have independent 
utility. To clarify what a linear project is, we have added a sentence 
to the definition of single and complete linear project to state that a 
linear project is a project constructed for the purpose of getting 
people, goods, or services from a point of origin to a terminal point. 
A linear project may involve multiple crossings of streams, wetlands, 
or other types of waters from the point of origin to the terminal 
point. Roads and pipelines are examples of linear projects. While each 
separate and distant crossing of a waterbody associated with a linear 
project would be considered a separate single and complete project for 
the purposes of the NWPs, district engineers will also evaluate the 
cumulative effects of those crossings to determine whether they qualify 
for NWP authorization.
    One commenter said that for an overall linear project the sum total 
of the losses of waters of the United States associated with that 
linear project cannot exceed the acreage or linear foot limits for an 
NWP. Several commenters stated that it was inappropriate to use 
multiple NWPs to authorize multiple crossings associated with one 
overall linear project, because it would be

[[Page 10264]]

impossible for the district engineer to determine if the overall 
project had minimal adverse effects on the environment or prevent the 
Corps from assessing the cumulative effects caused by the overall 
project. One commenter said these two proposed definitions may conflict 
with the NWP general conditions.
    For single and complete linear projects, each separate and distant 
crossing of a waterbody, as well as each crossing of other waterbodies 
along the corridor for the linear project may be permitted by separate 
NWP authorizations. The acreage and other applicable limits for an NWP 
would be applied to each crossing, as long as those crossings are far 
enough apart to be considered separate and distant. District engineers 
will evaluate the cumulative effects of those linear projects when 
determining whether authorization by NWP is appropriate. The approach 
to cumulative effects analysis for linear projects is little different 
than the cumulative effects analysis for other types of NWP activities, 
including those circumstances in which more than one NWP is used to 
authorize a single and complete non-linear project, because cumulative 
effects are evaluated on a regional basis. Cumulative effects analysis 
may be done on a watershed basis, or by using a different type of 
geographic area, such as an ecoregion.
    One commenter asked how offshore wind energy projects would be 
evaluated in accordance with these definitions, especially how the 
turbines, substations, cables, and associated infrastructure would be 
considered as either single and complete linear projects or single and 
complete non-linear projects.
    Deciding which definition to apply to a particular project depends 
on the configuration of the project relative to the locations of waters 
of the United States within the project boundaries. For offshore wind 
energy projects, the turbines would be located on structures in a 
single waterbody as would the transmission cables that transfer the 
energy from the turbines to a land-based substation, while land-based 
attendant features might be constructed in separate waterbodies located 
within a tract of land. The off-shore turbine structures and land-based 
attendant features may be considered as a single and complete non-
linear project, while as discussed above for NWPs 51 and 52, the 
utility lines that transfer the energy from the renewable energy 
generation facilities to a distribution system, regional grid, or other 
facility may be considered to be separate single and complete linear 
projects and may be authorized under a separate NWP, such as NWP 12. 
The district engineer will have to consider the activity-specific 
circumstances when determining which definition to apply and which NWPs 
are appropriate to use.
    One commenter asked whether district engineers have the authority 
to change the definitions of single and complete project or independent 
utility. Two commenters said the term ``distant'' should be defined in 
``single and complete linear project.''
    The definitions provided in today's final rule cannot be changed by 
district engineers, but those definitions will be subject to 
interpretation after these NWPs go into effect and they are 
implemented. It is not practical to provide specific definition of 
``distant'' since that must be a judgment call by the district engineer 
because of the substantial variability in landscapes and environmental 
conditions across the country.
    The definition for ``single and complete linear project'' is 
adopted with the modification discussed above. The definition for 
``single and complete non-linear project'' is adopted as proposed.
    Stormwater management. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Stormwater management facilities. We did not receive any comments 
on the proposed definition. The definition is adopted as proposed.
    Stream bed. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Stream channelization. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Structure. We did not propose any changes to the definition. One 
commenter requested that we include bridges and culverts in the 
definition of structures.
    Depending on how a bridge or culvert is constructed, and its 
effects on the aquatic environment, it may be considered a structure or 
fill. The bridge supports (i.e., bents) may be considered to be a 
structure for the purposes of this definition. However, placement of a 
culvert in a water of the United States can have the effect of raising 
the bottom elevation and thus should be regulated as fill. Accordingly, 
we are retaining the definition of structure as is presently proposed.
    Tidal wetland. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Vegetated shallows. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Waterbody. We did not receive any comments on the proposed 
definition, but we believe some modification of the definition is 
necessary to make it simpler and clearer. The revised definition simply 
says that, for the purposes of the NWPs, a waterbody is a 
jurisdictional water of the United States. We have removed the text 
referring to the presence of standing or flowing water above ground and 
the statement that an ordinary high water mark is an indicator of 
jurisdiction. The ordinary high water mark indicates the lateral extent 
of jurisdiction for a non-wetland waterbody in the absence of adjacent 
wetlands (see 33 CFR 328.4(c)(1)); the jurisdictional status of the 
waterbody is determined by applying the appropriate regulatory or legal 
criteria. In cases where the waterbody is a wetland, the lateral extent 
of the waterbody is the wetland boundary. Likewise, we have revised the 
last sentence of this definition by removing the phrase ``a 
jurisdictional waterbody displaying an OHWM or other indicators of 
jurisdiction'' and replacing it with ``a waterbody determined to be a 
water of the United States under 33 CFR 328.3(a)(1)-(6)''.
    The definition is adopted with the modifications discussed above.
    In addition to the comments submitted on definitions provided in 
the proposed rule, we received a number of comments suggesting the 
addition of more definitions to the ``Definitions'' section of the 
NWPs.
    One commenter requested that we define ``discrete event'' as it 
pertains to NWP 3 and NWP 45. One commenter asked for a definition of 
mechanized land clearing as it relates to the first pre-construction 
notification threshold in NWP 12, to make it clear whether activities 
that only involve the cutting or removal of vegetation above the ground 
are, or are not, regulated activities. One commenter said that the 
definition of fill should be provided in the NWPs to clarify the types 
of materials allowed or prohibited by the NWPs.
    What constitutes a ``discrete event'' for the purposes of NWPs 3 
and 45 is at the discretion of the district engineer, and in both NWPs 
we provide examples that give context to the term ``discrete event.'' 
In NWP 3, storms, floods, and fire are examples of discrete events. For 
NWP 45, storms and floods provide examples of discrete events. The 
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) is 
used to determine whether mechanized landclearing involves a discharge 
of

[[Page 10265]]

dredged material that is regulated under Section 404 of the Clean Water 
Act. Project proponents are encouraged to contact the district engineer 
to determine whether a particular activity involving mechanized 
clearing of a utility line right-of-way in a forested wetland 
constitutes a regulated activity, because the equipment and techniques 
used are important considerations. The definition of the term ``fill 
material'' is provided in the Corps regulations at 33 CFR 323.2(e). 
Nationwide permit activities must comply with general condition 6, 
suitable material, and it is not feasible to provide a comprehensive 
list of the types of materials that may be used as fill material for 
NWP activities.
    One commenter suggested adding a definition of ``special aquatic 
sites'' in the NWPs. One commenter said the definition of special 
aquatic sites should include glides, side channels, floodplains, and 
other types of habitats that create and maintain habitat for salmon and 
other fish species.
    The NWPs have a definition for one of the special aquatic sites 
listed in the 404(b)(1) Guidelines, specifically riffle and pool 
complexes and vegetated shallows. Definitions for the other special 
aquatic sites, that is, sanctuaries and refuges, wetlands, mud flats, 
and coral reefs, are found at sections 230.40, 230.41, 230.42, and 
230.44 of 40 CFR part 230, respectively. Glides, side channels, 
floodplains, and salmon and fish habitat are not considered special 
aquatic sites unless they satisfy the criteria at 40 CFR 230.40 through 
230.45.

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.saj.usace.army.mil/Divisions/Regulatory/HQAvatar.htm which will 
help the public find the home page of the appropriate Corps 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-RD, P.O. Box 6898, Elmendorf AFB, 
AK 99506-6898
Arizona
Los Angeles District Engineer, ATTN: CESPL-RG-R, P.O. Box 532711, Los 
Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN: CESWL-RD, P.O. Box 867, Little 
Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, 
Sacramento, CA 95814-2922
Colorado
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson Plaza 
NE., Albuquerque, NM 87109-3435
Connecticut
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building, 
100 Penn Square East Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN: CESAJ-RD, P. O. Box 4970, 
Jacksonville, FL 32232-0019
Georgia
Savannah District Engineer, ATTN: CESAS-RD, 100 West Oglethorpe Avenue, 
Savannah, GA 31401-3640
Hawaii
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third Avenue, 
Walla Walla, WA 99362-1876
Illinois
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock 
Island, IL 61204-2004
Indiana
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock 
Island, IL 61204-2004
Kansas
Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal Building, 
601 E. 12th Street, Kansas City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, New 
Orleans, LA 70160-0267
Maine
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
Massachusetts
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
Michigan
Detroit District Engineer, ATTN: CELRE-RG, 477 Michigan Avenue, 
Detroit, MI 48226-2550
Minnesota
St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street East, 
Suite 700, St. Paul, MN 55101-1678
Mississippi
Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street, 
Vicksburg, MS 39183-3435
Missouri
Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal Building, 
601 E. 12th Street, Kansas City, MO 64106-2896

[[Page 10266]]

Montana
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha, 
NE 68102-4901
Nebraska
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha, 
NE 68102-4901
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922
New Hampshire
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building, 
100 Penn Square East, Philadelphia, PA 19107-3390
New Mexico
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson Plaza 
NE., Albuquerque, NM 87109-3435
New York
New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New 
York, NY 10278-0090
North Carolina
Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890, 
Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha, 
NE 68102-4901
Ohio
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave., 
Tulsa, OK 74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946, Portland, 
OR 97208-2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
Rhode Island
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha, 
NE 68102-4901
Tennessee
Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road, 
Nashville, TN 37214
Texas
Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229, 
Galveston, TX 77553-1229
Utah
Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-WR-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, 180 Fifth Street East, 
Suite 700, St. Paul, MN 55101-1678
Wyoming
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha, 
NE 68102-4901
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
Pacific Territories (American Samoa, Guam, & Commonwealth of the 
Northern Mariana Islands)
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440
Puerto Rico and Virgin Islands
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019

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 result in a net decrease in the number of 
permittees who are required to submit a pre-construction notification, 
especially because of the changes to NWP 48. The content of the pre-
construction notification is not changed from the current NWPs, and the 
paperwork burden will decrease because of the reduced number of pre-
construction notifications submitted. The Corps estimates the decreased 
paperwork burden to be 4,005 hours per year. This is based on an 
average burden to complete and submit a pre-construction notification 
of 11 hours, and an estimated 45 NWP 48 activities that will still 
require pre-construction notifications, rather than 3,150 NWP 48 
activities that were previously estimated to require either reporting 
or pre-construction notification. Prospective permittees who are 
required to submit a pre-construction 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 330,000 hours per year (11 hours times 
30,000 activities per year requiring 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 August 31, 2012).

Executive Orders 12866 and 13563

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
13563 (76

[[Page 10267]]

FR 3821), we must determine whether the regulatory action is 
``significant'' and therefore subject to review by OMB and the 
requirements of the Executive Orders. The Executive Orders define 
``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 Orders 12866 and 13563, we 
determined that this action is a ``significant regulatory action'' and 
it was submitted to OMB for review. It is a significant regulatory 
action because it meets the fourth criterion in the Executive Order.
    The most substantive changes to these NWPs are the additional 
limits imposed on NWP 21, which authorizes discharges of dredged or 
fill material into waters of the United States associated with surface 
coal mining activities, the issuance of NWPs 51 and 52, which authorize 
activities associated with renewable energy generation facilities, and 
the modifications to NWP 48 which authorize existing and new commercial 
shellfish aquaculture activities.
    The changes to the NWPs that are most likely to result in 
additional economic costs are the changes to NWP 21, especially the \1/
2\-acre and 300 linear foot limits and the prohibition against 
discharges of dredged or fill material to construct valley fills. We 
have prepared a brief economic analysis to estimate the additional 
costs that will be imposed on the regulated public as a result of the 
change to the NWPs. It is available in the docket for this action at 
www.regulations.gov, docket number COE-2010-0035.
    The issuance of NWPs 51 and 52 will reduce the number of renewable 
energy generation facilities involving activities regulated under 
section 404 and/or section 10 requiring individual permits. While some 
components of land-based renewable energy generation facilities, such 
as road crossings, utility lines, and building pads involving 
discharges of dredged or fill material into waters of the United 
States, have been authorized by NWPs such as NWPs 14, 12, and 39 in the 
past, the new NWP 51 will provide DA authorization for all components 
of land-based renewable energy generation facilities that involve 
discharges of dredged or fill material into waters of the United 
States. There was no NWP authorization available for water-based 
renewable energy generation pilot projects, so the new NWP 52 will 
reduce the number of those activities that require individual permits.
    The NWPs support the goals of Executive Order 13563, ``Improving 
Regulation and Regulatory Review'' by reducing burdens on the regulated 
public through a streamlined process for obtaining Department of the 
Army authorization for activities that will result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
The NWPs reissued today, when considered as an overall package of NWPs, 
will authorize more activities than were previously authorized by NWP, 
such as water-based renewable energy pilot projects and new commercial 
shellfish aquaculture activities.

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-for-profit 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.
    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than five years. If the current NWPs are not reissued 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.

[[Page 10268]]

    Nationwide permits help relieve regulatory burdens on small 
entities who need to obtain DA permits. They provide an expedited form 
of authorization, as long as the project proponent meets all terms and 
conditions of the NWPs. In FY 2010, the Corps issued 32,029 NWP 
verifications, with an average processing time of 32 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 time for the 
2,085 standard permits issued during FY 2010 was 221 days. The NWPs 
issued and reissued 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 and reissued today are not expected to 
significantly increase cost or paperwork burden for authorized 
activities (relative to the NWPs issued in 2007), 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 pre-construction notification, 
for those activities where a pre-construction notification is required, 
is 11 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 pre-construction notification, many 
NWPs require that low-cost, commonsense 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 generally impose significant economic costs on small entities, 
and do not generally impose 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 
that can be authorized through these NWPs, because we are issuing two 
new NWPs and making substantial changes to NWP 48. The changes to NWP 
48, commercial shellfish aquaculture activities, will result in fewer 
project proponents having to submit pre-construction notifications or 
reports to Corps districts. We have also modified NWP 48 to authorize 
new commercial shellfish aquaculture activities, which were not 
previously authorized by NWP. While we are making substantial changes 
to NWP 21, we are also providing NWP 21 authorization without the new 
limits for surface coal mining activities previously authorized under 
the 2007 NWP 21, to have an equitable transition for those surface coal 
mining activities that cannot complete the authorized work by March 18, 
2013. For new NWP 21 activities subject to the new limits and 
prohibition against valley fills, where the project proponent is 
considered a small entity, the changes to that NWP will not result in a 
significant economic impact because the costs for obtaining an NWP 21 
authorization is generally higher when compared to other NWPs, and 
approach the costs for obtaining an individual permit.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    We have determined that the 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 
issuance of NWPs is not subject to the requirements of Section 203 of 
UMRA.

Executive Order 13045

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

[[Page 10269]]

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-to-
government consultation with Indian tribes to develop regional 
conditions that help protect tribal rights and trust resources, and to 
facilitate compliance with general condition 17, 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-2010-0035). They are also 
available by contacting Headquarters, U.S. Army Corps of Engineers, 
Operations and Regulatory Community of Practice, 441 G Street NW., 
Washington, DC 20314-1000.

Congressional Review Act

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

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The 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 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. Some of 
the NWPs authorize activities that support the supply and distribution 
of energy.

Authority

    We are issuing new NWPs and reissuing existing NWPs under the 
authority of Section 404(e) of the Clean Water Act (33 U.S.C. 1344) and 
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et 
seq.).

    Dated: February 13, 2012.
Michael J. Walsh,
Major General, US Army, Deputy Commanding General for Civil and 
Emergency Operations.

Nationwide Permits, Conditions, Further Information, and Definitions

A. Index of Nationwide Permits, Conditions, District Engineer's 
Decision, Further Information, and Definitions

Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil and Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste

[[Page 10270]]

39. Commercial and Institutional Developments
40. Agricultural Activities
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. [Reserved]
48. Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects From Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Bird and Bald and Golden Eagle Permits
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Pre-Construction Notification
District Engineer's Decision
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody

B. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
regulatory markers which are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I, 
subchapter C, part 66). (Section 10)
    2. Structures in Artificial Canals. Structures constructed in 
artificial canals within principally residential developments where the 
connection of the canal to a navigable water of the United States has 
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
    3. Maintenance. (a) The repair, rehabilitation, or replacement of 
any previously authorized, currently serviceable structure, or fill, or 
of any currently serviceable structure or fill authorized by 33 CFR 
330.3, provided that the structure or fill is not to be put to uses 
differing from those uses specified or contemplated for it in the 
original permit or the most recently authorized modification. Minor 
deviations in the structure's configuration or filled area, including 
those due to changes in materials, construction techniques, 
requirements of other regulatory agencies, or current construction 
codes or safety standards that are necessary to make the repair, 
rehabilitation, or replacement are authorized. Any stream channel 
modification is limited to the minimum necessary for the repair, 
rehabilitation, or replacement of the structure or fill; such 
modifications, including the removal of material from the stream 
channel, must be immediately adjacent to the project or within the 
boundaries of the structure or fill. This NWP also authorizes the 
repair, rehabilitation, or replacement of those structures or fills 
destroyed or damaged by storms, floods, fire or other discrete events, 
provided the repair, rehabilitation, or replacement is commenced, or is 
under contract to commence, within two years of the date of their 
destruction or damage. In cases of catastrophic events, such as 
hurricanes or tornadoes, this two-year limit may be waived by the 
district engineer, provided the permittee can demonstrate funding, 
contract, or other similar delays.
    (b) This NWP also authorizes the removal of accumulated sediments 
and debris in the vicinity of existing structures (e.g., bridges, 
culverted road crossings, water intake structures, etc.) and/or the 
placement of new or additional riprap to protect the structure. The 
removal of sediment is limited to the minimum necessary to restore the 
waterway in the vicinity of the structure to the approximate dimensions 
that existed when the structure was built, but cannot extend farther 
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 area that has no waters of the United 
States unless otherwise specifically approved by the district engineer 
under separate authorization. The placement of new or additional 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

[[Page 10271]]

must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    (d) This NWP does not authorize maintenance dredging for the 
primary purpose of navigation. This NWP does not authorize beach 
restoration. This NWP does not authorize new stream channelization or 
stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 31). 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 clam and oyster digging, fish 
aggregating devices, and small fish attraction devices such as open 
water fish concentrators (sea kites, etc.). This NWP does not authorize 
artificial reefs or impoundments and semi-impoundments of waters of the 
United States for the culture or holding of motile species such as 
lobster, or the use of covered oyster trays or clam racks. (Sections 10 
and 404)
    5. Scientific Measurement Devices. Devices, whose purpose is to 
measure and record scientific data, such as staff gages, tide and 
current gages, meteorological stations, water recording and biological 
observation devices, water quality testing and improvement devices, and 
similar structures. Small weirs and flumes constructed primarily to 
record water quantity and velocity are also authorized provided the 
discharge is limited to 25 cubic yards. Upon completion of the use of 
the device to measure and record scientific data, the measuring device 
and any other structures or fills associated with that device (e.g., 
foundations, anchors, buoys, lines, etc.) must be removed to the 
maximum extent practicable and the site restored to pre-construction 
elevations. (Sections 10 and 404)
    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, sample plots or transects for wetland delineations, and 
historic resources surveys. For the purposes of this NWP, the term 
``exploratory trenching'' means mechanical land clearing of the upper 
soil profile to expose bedrock or substrate, for the purpose of mapping 
or sampling the exposed material. The area in which the exploratory 
trench is dug must be restored to its pre-construction elevation upon 
completion of the work and must not drain a water of the United States. 
In wetlands, the top 6 to 12 inches of the trench should normally be 
backfilled with topsoil from the trench. This NWP authorizes the 
construction of temporary pads, provided the discharge does not exceed 
\1/10\-acre in waters of the U.S. Discharges and structures associated 
with the recovery of historic resources are not authorized by this NWP. 
Drilling and the discharge of excavated material from test wells for 
oil and gas exploration are not authorized by this NWP; the plugging of 
such wells is authorized. Fill placed for roads and other similar 
activities is not authorized by this NWP. The NWP does not authorize 
any permanent structures. The discharge of drilling mud and cuttings 
may require a permit under Section 402 of the Clean Water Act. 
(Sections 10 and 404)
    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction or modification of outfall structures and 
associated intake structures, where the effluent from the outfall is 
authorized, conditionally authorized, or specifically exempted by, or 
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 31.) (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 Interior, Bureau of Ocean Energy 
Management. 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), as well as 33 CFR 322.5(l) and 33 CFR part 334. 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 31.) (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 for each single and complete project.
    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

[[Page 10272]]

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 a larger single 
pad) are used where feasible.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of utility lines, including 
overhead power lines and utility line substations, in non-tidal waters 
of the United States, provided the activity, in combination with all 
other activities included in one single and complete project, does not 
cause the loss of greater than \1/2\-acre of non-tidal waters of the 
United States. This NWP does not authorize discharges into non-tidal 
wetlands adjacent to tidal waters for access roads. Access roads must 
be the minimum width necessary (see Note 2, below). Access roads must 
be constructed so that the length of the road minimizes any adverse 
effects on waters of the United States and must be as near as possible 
to pre-construction contours and elevations (e.g., at grade corduroy 
roads or geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States 
must be properly bridged or culverted to maintain surface flows.
    This NWP may authorize utility lines in or affecting navigable 
waters of the United States even if there is no associated discharge of 
dredged or fill material (See 33 CFR Part 322). Overhead utility lines 
constructed over section 10 waters and utility lines that are routed in 
or under section 10 waters without a discharge of dredged or fill 
material require a section 10 permit.
    This NWP also authorizes temporary structures, fills, and work 
necessary to conduct the utility line activity. Appropriate measures 
must be taken to maintain normal downstream flows and minimize flooding 
to the maximum extent practicable, when temporary structures, work, and 
discharges, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if any of the following criteria are met: (1) The activity involves 
mechanized land clearing in a forested wetland for the utility line 
right-of-way; (2) a section 10 permit is required; (3) the utility line 
in waters of the United States, excluding overhead lines, exceeds 500 
feet; (4) the utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to or along 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 31.) (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) within the coastal United States, the Great Lakes, and 
United States territories, copies of the pre-construction 
notification and NWP verification will be sent by the Corps to the 
National Oceanic and Atmospheric Administration (NOAA), National 
Ocean Service (NOS), for charting the utility line to protect 
navigation.

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

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

    Note 4:  For overhead utility lines authorized by this NWP, a 
copy of the PCN and NWP verification will be provided to the 
Department of Defense Siting Clearinghouse, which will evaluate 
potential effects on military activities.

    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion prevention, provided the activity meets all of the following 
criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;
    (c) The activity will not exceed an average of one cubic yard per 
running foot placed along the bank below the plane of the ordinary high 
water mark or the high tide line, unless the district engineer waives 
this criterion by making a written determination concluding that the 
discharge will result in minimal adverse effects;
    (d) The activity does not involve discharges of dredged or fill 
material into special aquatic sites, unless the district engineer 
waives this criterion by making a written determination concluding that 
the discharge will result in minimal adverse effects;
    (e) No material is of a type, or is placed in any location, or in 
any manner, that will impair surface water flow into or out of any 
waters of the United States;
    (f) No material is placed in a manner that will be eroded by normal 
or

[[Page 10273]]

expected high flows (properly anchored trees and treetops may be used 
in low energy areas); and,
    (g) The activity is not a stream channelization activity.
    This NWP also authorizes temporary structures, fills, and work 
necessary to construct the bank stabilization activity. Appropriate 
measures must be taken to maintain normal downstream flows and minimize 
flooding to the maximum extent practicable, when temporary structures, 
work, and discharges, including cofferdams, are necessary for 
construction activities, access fills, or dewatering of construction 
sites. Temporary fills must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary fills 
must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    Invasive plant species shall not be used for bioengineering or 
vegetative bank stabilization.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges into 
special aquatic sites; or (2) is in excess of 500 feet in length; 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 31.) 
(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 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    This NWP cannot be used to authorize non-linear features commonly 
associated with transportation projects, such as vehicle maintenance or 
storage buildings, parking lots, train stations, or aircraft hangars.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The loss of waters of the United States exceeds \1/10\-acre; or 
(2) there is a discharge in a special aquatic site, including wetlands. 
(See general condition 31.) (Sections 10 and 404)

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

    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of a bridge across 
navigable waters of the United States, including cofferdams, abutments, 
foundation seals, piers, and temporary construction and access fills, 
provided the construction of the bridge structure has been authorized 
by the U.S. Coast Guard under Section 9 of the Rivers and Harbors Act 
of 1899 and other applicable laws. Causeways and approach fills are not 
included in this NWP and will require a separate section 404 permit. 
(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 in an area that has no waters of the United 
States 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 31.) (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 31.) (Sections 10 and 404)
    19. Minor Dredging. Dredging of no more than 25 cubic yards below 
the plane of the ordinary high water mark or the mean high water mark 
from navigable waters of the United States (i.e., section 10 waters). 
This NWP does not authorize the dredging or degradation through 
siltation of coral reefs, sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist but may not be present in a given year), anadromous 
fish spawning areas, or wetlands, or the connection of canals or other 
artificial waterways to navigable waters of the United States (see 33 
CFR 322.5(g)). (Sections 10 and 404)
    20. Response Operations for Oil and Hazardous Substances. 
Activities conducted in response to a discharge or release of oil and 
hazardous substances that are subject to the National Oil and Hazardous 
Substances Pollution

[[Page 10274]]

Contingency Plan (40 CFR part 300) including containment, cleanup, and 
mitigation efforts, provided that the activities are done under either: 
(1) The Spill Control and Countermeasure Plan required by 40 CFR 112.3; 
(2) the direction or oversight of the federal on-scene coordinator 
designated by 40 CFR part 300; or (3) any approved existing state, 
regional or local contingency plan provided that the Regional Response 
Team (if one exists in the area) concurs with the proposed response 
efforts. This NWP also authorizes activities required for the cleanup 
of oil releases in waters of the United States from electrical 
equipment that are governed by EPA's polychlorinated biphenyl spill 
response regulations at 40 CFR part 761. This NWP also authorizes the 
use of temporary structures and fills in waters of the U.S. for spill 
response training exercises. (Sections 10 and 404)
    21. Surface Coal Mining Activities. Discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining and reclamation operations.
    (a) Previously Authorized Surface Coal Mining Activities. Surface 
coal mining activities that were previously authorized by the NWP 21 
issued on March 12, 2007 (see 72 FR 11092), are authorized by this NWP, 
provided the following criteria are met:
    (1) The activities are already authorized, or are currently being 
processed by states with approved programs under Title V of the Surface 
Mining Control and Reclamation Act of 1977 or as part of an integrated 
permit processing procedure by the Department of Interior, Office of 
Surface Mining Reclamation and Enforcement;
    (2) The permittee must submit a letter to the district engineer 
requesting re-verification of the NWP 21 authorization. The letter must 
describe any changes from the previous NWP 21 verification. The letter 
must be submitted to the district engineer by February 1, 2013;
    (3) The loss of waters of the United States is not greater than the 
loss of waters of the United States previously verified by the district 
engineer under the NWP 21 issued on March 12, 2007 (i.e., there are no 
proposed expansions of surface coal mining activities in waters of the 
United States);
    (4) The district engineer provides written verification that those 
activities will result in minimal individual and cumulative adverse 
effects and are authorized by NWP 21, including currently applicable 
regional conditions and any activity-specific conditions added to the 
NWP authorization by the district engineer, such as compensatory 
mitigation requirements; and
    (5) If the permittee does not receive a written verification from 
the district engineer prior to March 18, 2013, the permittee must cease 
all activities until such verification is received. The district 
engineer may extend the February 1, 2013, deadline by so notifying the 
permittee in writing, but the permittee must still cease all activities 
if he or she has not received written verification from the Corps by 
March 18, 2013, until such verification is received.
    (b) Other Surface Coal Mining Activities. Surface coal mining 
activities that were not previously authorized by the NWP 21 issued on 
March 12, 2007, are authorized by this NWP, provided the following 
criteria are met:
    (1) The activities are already authorized, or are currently being 
processed by states with approved programs under Title V of the Surface 
Mining Control and Reclamation Act of 1977 or as part of an integrated 
permit processing procedure by the Department of Interior, Office of 
Surface Mining Reclamation and Enforcement;
    (2) The discharge must not cause the loss of greater than \1/2\-
acre of non-tidal waters of the United States, including the loss of no 
more than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal individual and cumulative adverse effects. This 
NWP does not authorize discharges into tidal waters or non-tidal 
wetlands adjacent to tidal waters; and
    (3) The discharge is not associated with the construction of valley 
fills. A ``valley fill'' is a fill structure that is typically 
constructed within valleys associated with steep, mountainous terrain, 
associated with surface coal mining activities.
    Notification: For activities under paragraph (b) of this NWP, the 
permittee must submit a pre-construction notification to the district 
engineer and receive written authorization prior to commencing the 
activity. (See general condition 31.) (Sections 10 and 404)
    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) the activity is conducted in a 
special aquatic site, including coral reefs and wetlands. (See general 
condition 31.) 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 18, Endangered 
Species, and general condition 20, Historic Properties, is required 
for all NWPs. The concern with historic properties is emphasized in 
the notification requirements for this NWP because of the likelihood 
that submerged vessels may be historic properties.

    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity is categorically excluded from environmental documentation, 
because it is included within a category of actions which neither 
individually nor cumulatively have a significant effect on the human 
environment; and
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions, including pre-construction notification, for authorization 
of an agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 31). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letters. (Sections 10 and 404)

[[Page 10275]]

    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/Missions/CivilWorks/RegulatoryProgramandPermits/GuidanceLetters.aspx. Any future 
approved categorical exclusions will be announced in Regulatory 
Guidance Letters and posted on this same Web site.

    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe administering its own 
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is 
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899. 
(Section 10)

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

    Note 2: Those activities that do not involve an Indian Tribe or 
State section 404 permit are not included in this NWP, but certain 
structures will be exempted by Section 154 of Public Law 94-587, 90 
Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).

    25. Structural Discharges. Discharges of material such as concrete, 
sand, rock, etc., into tightly sealed forms or cells where the material 
will be used as a structural member for standard pile supported 
structures, such as bridges, transmission line footings, and walkways, 
or for general navigation, such as mooring cells, including the 
excavation of bottom material from within the form prior to the 
discharge of concrete, sand, rock, etc. This NWP does not authorize 
filled structural members that would support buildings, building pads, 
homes, house pads, parking areas, storage areas and other such 
structures. The structure itself may require a separate 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, the restoration and enhancement of non-
tidal streams and other non-tidal open waters, and the rehabilitation 
or enhancement of tidal streams, tidal wetlands, and 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, as well as discharges 
of dredged or fill material to restore appropriate stream channel 
configurations after small water control structures, dikes, and berms, 
are removed; 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; the removal of existing drainage 
structures, such as drain tiles, and the filling, blocking, or 
reshaping of drainage ditches to restore wetland hydrology; the 
installation of structures or fills necessary to establish or re-
establish wetland or stream hydrology; 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; re-establishment of submerged aquatic vegetation in 
areas where those plant communities previously existed; re-
establishment of tidal wetlands in tidal waters where those wetlands 
previously existed; 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. Changes in wetland plant communities that occur 
when wetland hydrology is more fully restored during wetland 
rehabilitation activities are not considered a conversion to another 
aquatic habitat type. 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.
    Compensatory mitigation is not required for activities authorized 
by this NWP since these activities must result in net increases in 
aquatic resource functions and services.
    Reversion. For enhancement, restoration, and establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding stream or wetland enhancement or restoration agreement, or 
a wetland establishment agreement, between the landowner and the U.S. 
Fish and Wildlife Service (FWS), the Natural Resources Conservation 
Service (NRCS), the Farm Service Agency (FSA), the National Marine 
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest 
Service (USFS), or their designated state cooperating agencies; (2) as 
voluntary wetland restoration, enhancement, and establishment actions 
documented by the NRCS or USDA Technical Service Provider pursuant to 
NRCS Field Office Technical Guide standards; or (3) on reclaimed 
surface coal mine lands, in accordance with a Surface Mining Control 
and Reclamation Act permit issued by the Office of Surface Mining 
Reclamation and Enforcement (OSMRE) or the applicable state agency, 
this NWP also authorizes any future discharge of dredged or fill 
material associated with the reversion of the area to its documented 
prior condition and use (i.e., prior to the restoration, enhancement, 
or establishment activities). The reversion must occur within five 
years after expiration of a limited term wetland restoration or 
establishment agreement or permit, and is authorized in these 
circumstances even if the discharge occurs after this NWP expires. The 
five-year reversion limit does not apply to agreements without time 
limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, 
USFS, or an appropriate state cooperating agency. This NWP also 
authorizes discharges of dredged or fill material in waters of the 
United States for the reversion of wetlands that were restored, 
enhanced, or established on prior-converted cropland or on uplands, in 
accordance with a binding agreement between the landowner and NRCS, 
FSA, FWS, or their designated state cooperating agencies (even though 
the restoration, enhancement, or establishment activity did not require 
a section 404 permit). The prior condition will be documented in the 
original agreement or permit, and the

[[Page 10276]]

determination of return to prior conditions will be made by the Federal 
agency or appropriate state agency executing the agreement or permit. 
Before conducting any reversion activity the permittee or the 
appropriate Federal or state agency must notify the district engineer 
and include the documentation of the prior condition. Once an area has 
reverted to its prior physical condition, it will be subject to 
whatever the Corps Regulatory requirements are applicable to that type 
of land at the time. The requirement that the activity results in a net 
increase in aquatic resource functions and services does not apply to 
reversion activities meeting the above conditions. Except for the 
activities described above, this NWP does not authorize any future 
discharge of dredged or fill material associated with the reversion of 
the area to its prior condition. In such cases a separate permit would 
be required for any reversion.
    Reporting. For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding stream enhancement or restoration 
agreement or wetland enhancement, restoration, or establishment 
agreement, or a project description, including project plans and 
location map; (2) the NRCS or USDA Technical Service Provider 
documentation for the voluntary stream enhancement or restoration 
action or wetland restoration, enhancement, or establishment action; or 
(3) the SMCRA permit issued by OSMRE or the applicable state agency. 
The report must also include information on baseline ecological 
conditions on the project site, such as a delineation of wetlands, 
streams, and/or other aquatic habitats. 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 any activity 
(see general condition 31), except for the following activities:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding stream 
enhancement or restoration agreement or wetland enhancement, 
restoration, or establishment agreement between the landowner and the 
U.S. FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state 
cooperating agencies;
    (2) Voluntary stream or wetland restoration or enhancement action, 
or wetland establishment action, documented by the NRCS or USDA 
Technical Service Provider pursuant to NRCS Field Office Technical 
Guide standards; or
    (3) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSMRE or the applicable state agency.
    However, the permittee must submit a copy of the appropriate 
documentation to the district engineer to fulfill the reporting 
requirement. (Sections 10 and 404)

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

    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the United States is authorized by this NWP. (Section 10)
    29. Residential Developments. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction or expansion of a single residence, a multiple unit 
residential development, or a residential subdivision. This NWP 
authorizes the construction of building foundations and building pads 
and attendant features that are necessary for the use of the residence 
or residential development. Attendant features may include but are not 
limited to roads, parking lots, garages, yards, utility lines, storm 
water management facilities, septic fields, and recreation facilities 
such as playgrounds, playing fields, and golf courses (provided the 
golf course is an integral part of the residential development).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Subdivisions: For residential subdivisions, the aggregate total 
loss of waters of United States authorized by this NWP cannot exceed 
\1/2\-acre. This includes any loss of waters of the United States 
associated with development of individual subdivision lots.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Sections 10 and 404)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife for the purpose of continuing ongoing, site-specific, 
wildlife management activities where soil manipulation is used to 
manage habitat and feeding areas for wildlife. Such activities include, 
but are not limited to, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, including 
streams, to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, or similar features associated 
with the management areas. The activity must not result in a net loss 
of aquatic resource functions and services. This NWP does not authorize 
the conversion of wetlands to uplands, impoundments, or other open 
water bodies. (Section 404)

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

    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, and channels that: (i) Were 
previously authorized by the Corps by individual permit, general 
permit, or 33 CFR 330.3, or did not require a permit at the time they 
were constructed, or (ii) were constructed by the Corps and transferred 
to a non-Federal sponsor for operation and maintenance. Activities 
authorized by this NWP are limited to those resulting from maintenance 
activities that are conducted within the ``maintenance baseline,'' as 
described in the definition below. Discharges of dredged or fill 
materials associated with maintenance activities in flood control 
facilities in any watercourse that have previously been determined to 
be within the maintenance baseline are authorized under this NWP. To 
the extent that a Corps permit is required, this NWP

[[Page 10277]]

authorizes the removal of vegetation from levees associated with the 
flood control project. This NWP does not authorize the removal of 
sediment and associated vegetation from natural water courses except 
when these activities have been included in the maintenance baseline. 
All dredged material must be placed in an area that has no waters of 
the United States or a separately authorized disposal site in waters of 
the United States, and proper siltation controls must be used.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
district engineer. The district engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels but which are part of the facility. The 
prospective permittee will provide documentation of the physical 
characteristics of the flood control facility (which will normally 
consist of as-built or approved drawings) and documentation of the 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices to ensure that the impacts to the aquatic 
environment are minimal, especially in maintenance areas where there 
are no constructed channels. (The Corps may request maintenance records 
in areas where there has not been recent maintenance.) Revocation or 
modification of the final determination of the maintenance baseline can 
only be done in accordance with 33 CFR 330.5. Except in emergencies as 
described below, this NWP cannot be used until the district engineer 
approves the maintenance baseline and determines the need for 
mitigation and any regional or activity-specific conditions. Once 
determined, the maintenance baseline will remain valid for any 
subsequent reissuance of this NWP. This NWP does not authorize 
maintenance of a flood control facility that has been abandoned. A 
flood control facility will be considered abandoned if it has operated 
at a significantly reduced capacity without needed maintenance being 
accomplished in a timely manner.
    Mitigation: The district engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental impacts are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the district engineer will not delay needed maintenance, 
provided the district engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline. In determining appropriate 
mitigation, the district engineer will give special consideration to 
natural water courses that have been included in the maintenance 
baseline and require compensatory mitigation and/or best management 
practices as appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been approved. Emergency situations 
are 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 31). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the dredged material 
disposal site. (Sections 10 and 404)
    32. Completed Enforcement Actions. Any structure, work, or 
discharge of dredged or fill material remaining in place or undertaken 
for mitigation, restoration, or environmental benefit in compliance 
with either:
    (i) The terms of a final written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the Clean Water Act 
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms 
of an EPA 309(a) order on consent resolving a violation of Section 404 
of the Clean Water Act, provided that:
    (a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
    (b) The settlement agreement provides for environmental benefits, 
to an equal or greater degree, than the environmental detriments caused 
by the unauthorized activity that is authorized by this NWP; and
    (c) The district engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP and the 
settlement agreement, including a specified completion date; or
    (ii) The terms of a final Federal court decision, consent decree, 
or settlement agreement resulting from an enforcement action brought by 
the United States under Section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    Compliance is a condition of the NWP itself. Any authorization 
under this NWP is automatically revoked if the permittee does not 
comply with the terms of this NWP or the terms of the court decision, 
consent decree, or judicial/non-judicial settlement agreement. This NWP 
does not apply to any activities occurring after the date of the 
decision, decree, or agreement that are not for the purpose of 
mitigation, restoration, or environmental benefit. Before reaching any 
settlement agreement, the Corps will ensure compliance with the 
provisions of 33

[[Page 10278]]

CFR part 326 and 33 CFR 330.6(d)(2) and (e). (Sections 10 and 404)
    33. Temporary Construction, Access, and Dewatering. Temporary 
structures, work, and discharges, including cofferdams, necessary for 
construction activities or access fills or dewatering of construction 
sites, provided that the associated primary activity is authorized by 
the Corps of Engineers or the U.S. Coast Guard. This NWP also 
authorizes temporary structures, work, and discharges, including 
cofferdams, necessary for construction activities not otherwise subject 
to the Corps or U.S. Coast Guard permit requirements. Appropriate 
measures must be taken to maintain near normal downstream flows and to 
minimize flooding. Fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. The use of 
dredged material may be allowed if the district engineer determines 
that it will not cause more than minimal adverse effects on aquatic 
resources. Following completion of construction, temporary fill must be 
entirely removed to an area that has no waters of the United States, 
dredged material must be returned to its original location, and the 
affected areas must be restored to pre-construction elevations. The 
affected areas must also be revegetated, as appropriate. This permit 
does not authorize the use of cofferdams to dewater wetlands or other 
aquatic areas to change their use. Structures left in place after 
construction is completed require a separate section 10 permit if 
located in navigable waters of the United States. (See 33 CFR part 
322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 31). 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 31.) (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 area that has 
no waters of the United States site and proper siltation controls are 
used. (Section 10)
    36. Boat Ramps. Activities required for the construction of boat 
ramps, provided the activity meets all of the following criteria:
    (a) The discharge into waters of the United States does not exceed 
50 cubic yards of concrete, rock, crushed stone or gravel into forms, 
or in the form of pre-cast concrete planks or slabs, unless the 
district engineer waives the 50 cubic yard limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;
    (b) The boat ramp does not exceed 20 feet in width, unless the 
district engineer waives this criterion by making a written 
determination concluding that the discharge will result in minimal 
adverse effects;
    (c) The base material is crushed stone, gravel or other suitable 
material;
    (d) The excavation is limited to the area necessary for site 
preparation and all excavated material is removed to an area that has 
no waters of the United States; 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 must 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 31.) (Sections 10 and 404)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624);
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 2509.13);
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3);
    (d) The Office of Surface Mining, or states with approved programs, 
for abandoned mine land reclamation activities under Title IV of the 
Surface Mining Control and Reclamation Act (30 CFR Subchapter R), where 
the activity does not involve coal extraction; or
    (e) The Farm Service Agency under its Emergency Conservation 
Program (7 CFR part 701).
    In general, the prospective permittee should wait until the 
district engineer issues an NWP verification or 45 calendar days have 
passed before proceeding with the watershed protection and 
rehabilitation activity. However, in cases where there is an 
unacceptable hazard to life or a significant loss of property or 
economic hardship will occur, the emergency watershed protection and 
rehabilitation activity may proceed immediately and the district 
engineer will consider the information in the pre-construction 
notification and any comments received as a result of agency 
coordination to decide whether the NWP 37 authorization should be 
modified, suspended, or revoked in accordance with the procedures at 33 
CFR 330.5.
    Notification: Except in cases where there is an unacceptable hazard 
to life or a significant loss of property or economic hardship will 
occur, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 31). (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

[[Page 10279]]

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 31.) (Sections 10 and 404)

    Note: Activities undertaken entirely on a Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
site by authority of CERCLA as approved or required by EPA, are not 
required to obtain permits under Section 404 of the Clean Water Act 
or Section 10 of the Rivers and Harbors Act.

    39. Commercial and Institutional Developments. Discharges of 
dredged or fill material into non-tidal waters of the United States for 
the construction or expansion of commercial and institutional building 
foundations and building pads and attendant features that are necessary 
for the use and maintenance of the structures. Attendant features may 
include, but are not limited to, roads, parking lots, garages, yards, 
utility lines, storm water management facilities, and recreation 
facilities such as playgrounds and playing fields. Examples of 
commercial developments include retail stores, industrial facilities, 
restaurants, business parks, and shopping centers. Examples of 
institutional developments include schools, fire stations, government 
office buildings, judicial buildings, public works buildings, 
libraries, hospitals, and places of worship. The construction of new 
golf courses and new ski areas is not authorized by this NWP.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Sections 10 and 404)

    Note:  For any activity that involves the construction of a wind 
energy generating structure, solar tower, or overhead transmission 
line, a copy of the PCN and NWP verification will be provided to the 
Department of Defense Siting Clearinghouse, which will evaluate 
potential effects on military activities.

    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States for agricultural activities, 
including the construction of building pads for farm buildings. 
Authorized activities include the installation, placement, or 
construction of drainage tiles, ditches, or levees; mechanized land 
clearing; land leveling; the relocation of existing serviceable 
drainage ditches constructed in waters of the United States; and 
similar activities.
    This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams, 
provided the farm pond is used solely for agricultural purposes. This 
NWP does not authorize the construction of aquaculture ponds.
    This NWP also authorizes discharges of dredged or fill material 
into non-tidal waters of the United States to relocate existing 
serviceable drainage ditches constructed in non-tidal streams.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (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 31.) (Section 404)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States for the construction or 
expansion of recreational facilities. Examples of recreational 
facilities that may be authorized by this NWP include playing fields 
(e.g., football fields, baseball fields), basketball courts, tennis 
courts, hiking trails, bike paths, golf courses, ski areas, horse 
paths, nature centers, and campgrounds (excluding recreational vehicle 
parks). This NWP also authorizes the construction or expansion of small 
support facilities, such as maintenance and storage buildings and 
stables that are directly related to the recreational activity, but it 
does not authorize the construction of hotels, restaurants, racetracks, 
stadiums, arenas, or similar facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Section 404)
    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction of stormwater management facilities, including stormwater 
detention basins and retention basins and other

[[Page 10280]]

stormwater management facilities; the construction of water control 
structures, outfall structures and emergency spillways; and the 
construction of low impact development integrated management features 
such as bioretention facilities (e.g., rain gardens), vegetated filter 
strips, grassed swales, and infiltration trenches. This NWP also 
authorizes, to the extent that a section 404 permit is required, 
discharges of dredged or fill material into non-tidal waters of the 
United States for the maintenance of stormwater management facilities. 
Note that stormwater management facilities that are determined to be 
waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the 
United States, and maintenance of these waste treatment systems 
generally does not require a section 404 permit.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize discharges of dredged or fill material for the 
construction of new stormwater management facilities in perennial 
streams.
    Notification: For the construction of new stormwater management 
facilities, or the expansion of existing stormwater management 
facilities, the permittee must submit a pre-construction notification 
to the district engineer prior to commencing the activity. (See general 
condition 31.) Maintenance activities do not require pre-construction 
notification if they are limited to restoring the original design 
capacities of the stormwater management facility. (Section 404)
    44. Mining Activities. Discharges of dredged or fill material into 
non-tidal waters of the United States for mining activities, except for 
coal mining activities. The discharge must not cause the loss of 
greater than \1/2\-acre of non-tidal waters of the United States, 
including the loss of no more than 300 linear feet of stream bed, 
unless for intermittent and ephemeral stream beds the district engineer 
waives the 300 linear foot limit by making a written determination 
concluding that the discharge will result in minimal adverse effects. 
This NWP does not authorize discharges into non-tidal wetlands adjacent 
to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) If reclamation is required by other 
statutes, then a copy of the reclamation plan must be submitted with 
the pre-construction notification. (Sections 10 and 404)
    45. Repair of Uplands Damaged by Discrete Events. This NWP 
authorizes discharges of dredged or fill material, including dredging 
or excavation, into all waters of the United States for activities 
associated with the restoration of upland areas damaged by storms, 
floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. The district engineer retains the right to determine the 
extent of the pre-existing conditions and the extent of any restoration 
work authorized by this NWP. The work must commence, or be under 
contract to commence, within two years of the date of damage, unless 
this condition is waived in writing by the district engineer. This NWP 
cannot be used to reclaim lands lost to normal erosion processes over 
an extended period.
    This NWP does not authorize beach restoration or nourishment.
    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 31) within 
12-months of the date of the damage. The pre-construction notification 
should include documentation, such as a recent topographic survey or 
photographs, to justify the extent of the proposed restoration. 
(Sections 10 and 404)

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

    46. Discharges in Ditches. Discharges of dredged or fill material 
into non-tidal ditches that are: (1) Constructed in uplands, (2) 
receive water from an area determined to be a water of the United 
States prior to the construction of the ditch, (3) divert water to an 
area determined to be a water of the United States prior to the 
construction of the ditch, and (4) are determined to be waters of the 
United States. The discharge must not cause the loss of greater than 
one acre of waters of the United States. This NWP does not authorize 
discharges of dredged or fill material into ditches constructed in 
streams or other waters of the United States, or in streams that have 
been relocated in uplands. This NWP does not authorize discharges of 
dredged or fill material that increase the capacity of the ditch and 
drain those areas determined to be waters of the United States prior to 
construction of the ditch.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Section 404)
    47. [Reserved]
    48. Commercial Shellfish Aquaculture Activities. Discharges of 
dredged or fill material in waters of the United States or structures 
or work in navigable waters of the United States necessary for 
commercial shellfish aquaculture operations in authorized project 
areas. For the purposes of this NWP, the project area is the area in 
which the operator is currently authorized to conduct commercial 
shellfish aquaculture activities, as identified through a lease or 
permit issued by an appropriate state or local government agency, a 
treaty, or any other easement, lease, deed, or contract which 
establishes an enforceable property interest for the operator. This NWP 
authorizes the installation of buoys, floats, racks, trays, nets, 
lines, tubes, containers, and other structures into navigable waters of 
the United States. This NWP also authorizes discharges of dredged or 
fill material into waters of the United States necessary for shellfish 
seeding, rearing, cultivating, transplanting, and harvesting 
activities. Rafts and other floating structures must be securely 
anchored and clearly marked. This NWP does not authorize:
    (a) The cultivation of a nonindigenous species unless that species 
has been previously cultivated in the waterbody;
    (b) The cultivation of an aquatic nuisance species as defined in 
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990; 
or,
    (c) Attendant features such as docks, piers, boat ramps, 
stockpiles, or staging areas, or the deposition of shell material back 
into waters of the United States as waste.
    This NWP also authorizes commercial shellfish aquaculture 
activities in new project areas, provided the project proponent has 
obtained a valid

[[Page 10281]]

authorization, such as a lease or permit issued by an appropriate state 
or local government agency, and those activities do not directly affect 
more than \1/2\-acre of submerged aquatic vegetation beds.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if: (1) Dredge harvesting, 
tilling, or harrowing is conducted in areas inhabited by submerged 
aquatic vegetation; (2) the activity will include a species not 
previously cultivated in the waterbody; (3) the activity involves a 
change from bottom culture to floating or suspended culture; or (4) the 
activity occurs in a new project area. (See general condition 31.)
    In addition to the information required by paragraph (b) of general 
condition 31, the pre-construction notification must also include the 
following information: (1) A map showing the boundaries of the project 
area, with latitude and longitude coordinates for each corner of the 
project area; (2) the name(s) of the cultivated species; and (3) 
whether canopy predator nets are being used. (Sections 10 and 404)

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

    Note 2:  To prevent introduction of aquatic nuisance species, no 
material that has been taken from a different waterbody may be 
reused in the current project area, unless it has been treated in 
accordance with the applicable regional aquatic nuisance species 
management plan.

    Note 3:  The Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 defines ``aquatic nuisance species'' as ``a 
nonindigenous species that threatens the diversity or abundance of 
native species or the ecological stability of infested waters, or 
commercial, agricultural, aquacultural, or recreational activities 
dependent on such waters.''

    49. Coal Remining Activities. Discharges of dredged or fill 
material into non-tidal waters of the United States associated with the 
remining and reclamation of lands that were previously mined for coal. 
The activities must already be authorized, or they must currently be in 
process as part of an integrated permit processing procedure, by the 
Department of Interior Office of Surface Mining Reclamation and 
Enforcement, or by states with approved programs under Title IV or 
Title V of the Surface Mining Control and Reclamation Act (SMCRA) of 
1977. Areas previously mined include reclaimed mine sites, abandoned 
mine land areas, or lands under bond forfeiture contracts.
    As part of the project, the permittee may conduct new coal mining 
activities in conjunction with the remining activities when he or she 
clearly demonstrates to the district engineer that the overall mining 
plan will result in a net increase in aquatic resource functions. The 
Corps will consider the SMCRA agency's decision regarding the amount of 
currently undisturbed adjacent lands needed to facilitate the remining 
and reclamation of the previously mined area. The total area disturbed 
by new mining must not exceed 40 percent of the total acreage covered 
by both the remined area and the additional area necessary to carry out 
the reclamation of the previously mined area.
    Notification: The permittee must submit a pre-construction 
notification and a document describing how the overall mining plan will 
result in a net increase in aquatic resource functions to the district 
engineer and receive written authorization prior to commencing the 
activity. (See general condition 31.) (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, Office of Surface Mining Reclamation and Enforcement, or by 
states with approved programs under Title V of the Surface Mining 
Control and Reclamation Act of 1977.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize coal preparation and processing activities outside 
of the mine site.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 31.) If 
reclamation is required by other statutes, then a copy of the 
reclamation plan must be submitted with the pre-construction 
notification. (Sections 10 and 404)

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

    51. Land-Based Renewable Energy Generation Facilities. Discharges 
of dredged or fill material into non-tidal waters of the United States 
for the construction, expansion, or modification of land-based 
renewable energy production facilities, including attendant features. 
Such facilities include infrastructure to collect solar (concentrating 
solar power and photovoltaic), wind, biomass, or geothermal energy. 
Attendant features may include, but are not limited to roads, parking 
lots, and stormwater management facilities within the land-based 
renewable energy generation facility.
    The discharge must not cause the loss of greater than\1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. This permit does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Sections 10 and 404)

    Note 1:  Utility lines constructed to transfer the energy from 
the land-based renewable generation facility to a distribution 
system, regional grid, or other facility are generally considered to 
be linear projects and each separate and distant crossing of a 
waterbody is eligible for treatment as a separate and complete 
linear project. Those utility lines may be authorized by NWP 12 or 
another Department of the Army authorization. If the only activities 
associated with the construction, expansion, or modification of a 
land-based renewable energy generation facility that require 
Department of the Army authorization are discharges of dredged or 
fill material into waters of the United States to construct, 
maintain, repair, and/or remove utility lines, then NWP 12 shall be 
used if those activities meet the terms and conditions of NWP 12, 
including any applicable regional conditions and any case-specific 
conditions imposed by the district engineer.

    Note 2:  For any activity that involves the construction of a 
wind energy generating structure, solar tower, or overhead 
transmission line, a copy of the PCN and NWP verification will be 
provided to the Department of Defense Siting Clearinghouse, which 
will evaluate potential effects on military activities.

    52. Water-Based Renewable Energy Generation Pilot Projects. 
Structures and

[[Page 10282]]

work in navigable waters of the United States and discharges of dredged 
or fill material into waters of the United States for the construction, 
expansion, modification, or removal of water-based wind or hydrokinetic 
renewable energy generation pilot projects and their attendant 
features. Attendant features may include, but are not limited to, land-
based collection and distribution facilities, control facilities, 
roads, parking lots, and stormwater management facilities.
    For the purposes of this NWP, the term ``pilot project'' means an 
experimental project where the renewable energy generation units will 
be monitored to collect information on their performance and 
environmental effects at the project site.
    The discharge must not cause the loss of greater than \1/2\-acre of 
waters of the United States, including the loss of no more than 300 
linear feet of stream bed, unless for intermittent and ephemeral stream 
beds the district engineer waives the 300 linear foot limit by making a 
written determination concluding that the discharge will result in 
minimal adverse effects. The placement of a transmission line on the 
bed of a navigable water of the United States from the renewable energy 
generation unit(s) to a land-based collection and distribution facility 
is considered a structure under Section 10 of the Rivers and Harbors 
Act of 1899 (see 33 CFR 322.2(b)), and the placement of the 
transmission line on the bed of a navigable water of the United States 
is not a loss of waters of the United States for the purposes of 
applying the \1/2\-acre or 300 linear foot limits.
    For each single and complete project, no more than 10 generation 
units (e.g., wind turbines or hydrokinetic devices) are authorized.
    This NWP does not authorize activities in coral reefs. Structures 
in an anchorage area established by the U.S. Coast Guard must comply 
with the requirements in 33 CFR 322.5(l)(2). Structures may not be 
placed in established danger zones or restricted areas as designated in 
33 CFR part 334, Federal navigation channels, shipping safety fairways 
or traffic separation schemes established by the U.S. Coast Guard (see 
33 CFR 322.5(l)(1)), or EPA or Corps designated open water dredged 
material disposal areas.
    Upon completion of the pilot project, the generation units, 
transmission lines, and other structures or fills associated with the 
pilot project must be removed to the maximum extent practicable unless 
they are authorized by a separate Department of the Army authorization, 
such as another NWP, an individual permit, or a regional general 
permit. Completion of the pilot project will be identified as the date 
of expiration of the Federal Energy Regulatory Commission (FERC) 
license, or the expiration date of the NWP authorization if no FERC 
license is issued.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 31.) (Sections 10 and 404)

    Note 1:  Utility lines constructed to transfer the energy from 
the land-based collection facility to a distribution system, 
regional grid, or other facility are generally considered to be 
linear projects and each separate and distant crossing of a 
waterbody is eligible for treatment as a separate and complete 
linear project. Those utility lines may be authorized by NWP 12 or 
another Department of the Army authorization.

    Note 2:  An activity that is located on an existing locally or 
federally maintained U.S. Army Corps of Engineers project requires 
separate approval from the Chief of Engineers under 33 U.S.C. 408.

    Note 3:  If the pilot project, including any transmission lines, 
is placed in navigable waters of the United States (i.e., section 10 
waters) within the coastal United States, the Great Lakes, and 
United States territories, copies of the pre-construction 
notification and NWP verification will be sent by the Corps to the 
National Oceanic and Atmospheric Administration, National Ocean 
Service, for charting the generation units and associated 
transmission line(s) to protect navigation.

    Note 4:  For any activity that involves the construction of a 
wind energy generating structure, solar tower, or overhead 
transmission line, a copy of the PCN and NWP verification will be 
provided to the Department of Defense Siting Clearinghouse, which 
will evaluate potential effects on military activities.

C. Nationwide Permit General Conditions

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

    1. Navigation. (a) No activity may cause more than a minimal 
adverse effect on navigation.
    (b) Any safety lights and signals prescribed by the U.S. Coast 
Guard, through regulations or otherwise, must be installed and 
maintained at the permittee's expense on authorized facilities in 
navigable waters of the United States.
    (c) The permittee understands and agrees that, if future operations 
by the United States require the removal, relocation, or other 
alteration, of the structure or work herein authorized, or if, in the 
opinion of the Secretary of the Army or his authorized representative, 
said structure or work shall cause unreasonable obstruction to the free 
navigation of the navigable waters, the permittee will be required, 
upon due notice from the Corps of Engineers, to remove, relocate, or 
alter the structural work or obstructions caused thereby, without 
expense to the United States. No claim shall be made against the United 
States on account of any such removal or alteration.
    2. Aquatic Life Movements. No activity may substantially disrupt 
the necessary life cycle movements of those species of aquatic life 
indigenous to the waterbody, including those species that normally 
migrate through the area, unless the activity's primary purpose is to 
impound water. All permanent and temporary crossings of waterbodies 
shall be suitably culverted, bridged, or otherwise designed and 
constructed to maintain low flows to sustain the movement of those 
aquatic species.
    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, or is a 
shellfish seeding or habitat restoration activity authorized by NWP 27.

[[Page 10283]]

    6. Suitable Material. No activity may use unsuitable material 
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for 
construction or discharged must be free from toxic pollutants in toxic 
amounts (see Section 307 of the Clean Water Act).
    7. Water Supply Intakes. No activity may occur in the proximity of 
a public water supply intake, except where the activity is for the 
repair or improvement of public water supply intake structures or 
adjacent bank stabilization.
    8. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to 
accelerating the passage of water, and/or restricting its flow must be 
minimized to the maximum extent practicable.
    9. Management of Water Flows. To the maximum extent practicable, 
the pre-construction course, condition, capacity, and location of open 
waters must be maintained for each activity, including stream 
channelization and storm water management activities, except as 
provided below. The activity must be constructed to withstand expected 
high flows. The activity must not restrict or impede the passage of 
normal or high flows, unless the primary purpose of the activity is to 
impound water or manage high flows. The activity may alter the pre-
construction course, condition, capacity, and location of open waters 
if it benefits the aquatic environment (e.g., stream restoration or 
relocation activities).
    10. Fills Within 100-Year Floodplains. The activity must comply 
with applicable FEMA-approved state or local floodplain management 
requirements.
    11. Equipment. Heavy equipment working in wetlands or mudflats must 
be placed on mats, or other measures must be taken to minimize soil 
disturbance.
    12. Soil Erosion and Sediment Controls. Appropriate soil erosion 
and sediment controls must be used and maintained in effective 
operating condition during construction, and all exposed soil and other 
fills, as well as any work below the ordinary high water mark or high 
tide line, must be permanently stabilized at the earliest practicable 
date. Permittees are encouraged to perform work within waters of the 
United States during periods of low-flow or no-flow.
    13. Removal of Temporary Fills. Temporary fills must be removed in 
their entirety and the affected areas returned to pre-construction 
elevations. The affected areas must be revegetated, as appropriate.
    14. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety and 
compliance with applicable NWP general conditions, as well as any 
activity-specific conditions added by the district engineer to an NWP 
authorization.
    15. 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.
    16. Wild and Scenic Rivers. No activity may occur in a component of 
the National Wild and Scenic River System, or in a river officially 
designated by Congress as a ``study river'' for possible inclusion in 
the system while the river is in an official study status, unless the 
appropriate Federal agency with direct management responsibility for 
such river, has determined in writing that the proposed activity will 
not adversely affect the Wild and Scenic River designation or study 
status. Information on Wild and Scenic Rivers may be obtained from the 
appropriate Federal land management agency responsible for the 
designated Wild and Scenic River or study river (e.g., National Park 
Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and 
Wildlife Service).
    17. 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.
    18. Endangered Species. (a) No activity is authorized under any NWP 
which is likely to directly or indirectly jeopardize the continued 
existence of a threatened or endangered species or a species proposed 
for such designation, as identified under the Federal Endangered 
Species Act (ESA), or which will directly or indirectly destroy or 
adversely modify the critical habitat of such species. No activity is 
authorized under any NWP which ``may affect'' a listed species or 
critical habitat, unless Section 7 consultation addressing the effects 
of the proposed activity has been completed.
    (b) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA. Federal permittees must 
provide the district engineer with the appropriate documentation to 
demonstrate compliance with those requirements. The district engineer 
will review the documentation and determine whether it is sufficient to 
address ESA compliance for the NWP activity, or whether additional ESA 
consultation is necessary.
    (c) Non-federal permittees must submit a pre-construction 
notification to 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 might be affected 
by the proposed work or that utilize the designated critical habitat 
that might be affected by the proposed work. The district engineer will 
determine whether the proposed activity ``may affect'' or will have 
``no effect'' to listed species and designated critical habitat and 
will notify the non-Federal applicant of the Corps' determination 
within 45 days of receipt of a complete pre-construction notification. 
In cases where the non-Federal applicant has identified listed species 
or critical habitat that might be affected or is in the vicinity of the 
project, and has so notified the Corps, the applicant shall not begin 
work until the Corps has provided notification the proposed activities 
will have ``no effect'' on listed species or critical habitat, or until 
Section 7 consultation has been completed. If the non-Federal applicant 
has not heard back from the Corps within 45 days, the applicant must 
still wait for notification from the Corps.
    (d) As a result of formal or informal consultation with the FWS or 
NMFS the district engineer may add species-specific regional endangered 
species conditions to the NWPs.
    (e) Authorization of an activity by a NWP does not authorize the 
``take'' of a threatened or endangered species as defined under the 
ESA. In the absence of separate authorization (e.g., an ESA Section 10 
Permit, a Biological Opinion with ``incidental take'' provisions, etc.) 
from the U.S. FWS or the NMFS, The Endangered Species Act prohibits any 
person subject to the jurisdiction of the United States to take a 
listed species, where ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. The word ``harm'' in the definition of ``take'' 
means an act which actually kills or injures wildlife. Such an act may 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns,

[[Page 10284]]

including breeding, feeding or sheltering.
    (f) Information on the location of threatened and endangered 
species and their critical habitat can be obtained directly from the 
offices of the U.S. FWS and NMFS or their world wide web pages at 
http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.noaa.gov/fisheries.html respectively.
    19. Migratory Birds and Bald and Golden Eagles. The permittee is 
responsible for obtaining any ``take'' permits required under the U.S. 
Fish and Wildlife Service's regulations governing compliance with the 
Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. 
The permittee should contact the appropriate local office of the U.S. 
Fish and Wildlife Service to determine if such ``take'' permits are 
required for a particular activity.
    20. 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. The district engineer will review the documentation and 
determine whether it is sufficient to address section 106 compliance 
for the NWP activity, or whether additional section 106 consultation is 
necessary.
    (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 
on, determined to be eligible for listing on, or potentially eligible 
for listing on the National Register of Historic Places, including 
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties may be 
affected by the proposed work or include a vicinity map indicating the 
location of the historic properties or the potential for the presence 
of historic properties. Assistance regarding information on the 
location of or potential for the presence of historic resources can be 
sought from the State Historic Preservation Officer or Tribal Historic 
Preservation Officer, as appropriate, and the National Register of 
Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction 
notifications, district engineers will comply with the current 
procedures for addressing the requirements of Section 106 of the 
National Historic Preservation Act. The district engineer shall make a 
reasonable and good faith effort to carry out appropriate 
identification efforts, which may include background research, 
consultation, oral history interviews, sample field investigation, and 
field survey. Based on the information submitted and these efforts, the 
district engineer shall determine whether the proposed activity has the 
potential to cause an effect on the historic properties. Where the non-
Federal applicant has identified historic properties on which the 
activity may have the potential to cause effects and so notified the 
Corps, the non-Federal applicant shall not begin the activity until 
notified by the district engineer either that the activity has no 
potential to cause effects or that consultation under Section 106 of 
the NHPA has been completed.
    (d) The district engineer will notify the prospective permittee 
within 45 days of receipt of a complete pre-construction notification 
whether NHPA Section 106 consultation is required. Section 106 
consultation is not required when the Corps determines that the 
activity does not have the potential to cause effects on historic 
properties (see 36 CFR 800.3(a)). If NHPA section 106 consultation is 
required and will occur, the district engineer will notify the non-
Federal applicant that he or she cannot begin work until Section 106 
consultation is completed. If the non-Federal applicant has not heard 
back from the Corps within 45 days, the applicant must still wait for 
notification from the Corps.
    (e) Prospective permittees should be aware that section 110k of the 
NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or 
other assistance to an applicant who, with intent to avoid the 
requirements of Section 106 of the NHPA, has intentionally 
significantly adversely affected a historic property to which the 
permit would relate, or having legal power to prevent it, allowed such 
significant adverse effect to occur, unless the Corps, after 
consultation with the Advisory Council on Historic Preservation (ACHP), 
determines that circumstances justify granting such assistance despite 
the adverse effect created or permitted by the applicant. If 
circumstances justify granting the assistance, the Corps is required to 
notify the ACHP and provide documentation specifying the circumstances, 
the degree of damage to the integrity of any historic properties 
affected, and proposed mitigation. This documentation must include any 
views obtained from the applicant, SHPO/THPO, appropriate Indian tribes 
if the undertaking occurs on or affects historic properties on tribal 
lands or affects properties of interest to those tribes, and other 
parties known to have a legitimate interest in the impacts to the 
permitted activity on historic properties.
    21. Discovery of Previously Unknown Remains and Artifacts. If you 
discover any previously unknown historic, cultural or archeological 
remains and artifacts while accomplishing the activity authorized by 
this permit, you must immediately notify the district engineer of what 
you have found, and to the maximum extent practicable, avoid 
construction activities that may affect the remains and artifacts until 
the required coordination has been completed. The district engineer 
will initiate the Federal, Tribal and state coordination required to 
determine if the items or remains warrant a recovery effort or if the 
site is eligible for listing in the National Register of Historic 
Places.
    22. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-managed marine sanctuaries and marine monuments, and 
National Estuarine Research Reserves. The district engineer may 
designate, after notice and opportunity for public comment, additional 
waters officially designated by a state as having particular 
environmental or ecological significance, such as outstanding national 
resource waters or state natural heritage sites. The district engineer 
may also designate additional critical resource waters after notice and 
opportunity for public comment.
    (a) Discharges of dredged or fill material into waters of the 
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 
35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 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 31, 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.

[[Page 10285]]

    23. 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 for resource losses) will be required to the 
extent necessary to ensure that the adverse effects to the aquatic 
environment are minimal.
    (c) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all wetland losses that exceed \1/10\-acre and require 
pre-construction notification, unless the district engineer determines 
in writing that either some other form of mitigation would be more 
environmentally appropriate or the adverse effects of the proposed 
activity are minimal, and provides a project-specific waiver of this 
requirement. For wetland losses of \1/10\-acre or less that require 
pre-construction notification, the district engineer may determine on a 
case-by-case basis that compensatory mitigation is required to ensure 
that the activity results in minimal adverse effects on the aquatic 
environment. Compensatory mitigation projects provided to offset losses 
of aquatic resources must comply with the applicable provisions of 33 
CFR part 332.
    (1) The prospective permittee is responsible for proposing an 
appropriate compensatory mitigation option if compensatory mitigation 
is necessary to ensure that the activity results in minimal adverse 
effects on the aquatic environment.
    (2) 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.
    (3) If permittee-responsible mitigation is the proposed option, the 
prospective permittee is responsible for submitting a mitigation plan. 
A conceptual or detailed mitigation plan may be used by the district 
engineer to make the decision on the NWP verification request, but a 
final mitigation plan that addresses the applicable requirements of 33 
CFR 332.4(c)(2)-(14) must be approved by the district engineer before 
the permittee begins work in waters of the United States, unless the 
district engineer determines that prior approval of the final 
mitigation plan is not practicable or not necessary to ensure timely 
completion of the required compensatory mitigation (see 33 CFR 
332.3(k)(3)).
    (4) If mitigation bank or in-lieu fee program credits are the 
proposed option, the mitigation plan only needs to address the baseline 
conditions at the impact site and the number of credits to be provided.
    (5) Compensatory mitigation requirements (e.g., resource type and 
amount to be provided as compensatory mitigation, site protection, 
ecological performance standards, monitoring requirements) may be 
addressed through conditions added to the NWP authorization, instead of 
components of a compensatory mitigation plan.
    (d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require 
compensatory mitigation, such as stream rehabilitation, enhancement, or 
preservation, 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 
restoration or 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. If it is not possible to establish a 
riparian area on both sides of a stream, or if the waterbody is a lake 
or coastal waters, then restoring or establishing a riparian area along 
a single bank or shoreline may be sufficient. Where both wetlands and 
open waters exist on the project site, the district engineer will 
determine the appropriate compensatory mitigation (e.g., riparian areas 
and/or wetlands compensation) based on what is best for the aquatic 
environment on a watershed basis. In cases where riparian areas are 
determined to be the most appropriate form of compensatory mitigation, 
the district engineer may waive or reduce the requirement to provide 
wetland compensatory mitigation for wetland losses.
    (g) Permittees may propose the use of mitigation banks, in-lieu fee 
programs, or separate permittee-responsible mitigation. For activities 
resulting in the loss of marine or estuarine resources, permittee-
responsible compensatory mitigation may be environmentally preferable 
if there are no mitigation banks or in-lieu fee programs in the area 
that have marine or estuarine credits available for sale or transfer to 
the permittee. For permittee-responsible mitigation, the special 
conditions of the NWP verification must clearly indicate the party or 
parties responsible for the implementation and performance of the 
compensatory mitigation project, and, if required, its long-term 
management.
    (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.
    24. Safety of Impoundment Structures. To ensure that all 
impoundment structures are safely designed, the district engineer may 
require non-Federal applicants to demonstrate that the structures 
comply with established state dam safety criteria or have been designed 
by qualified persons. The district engineer may also require 
documentation that the design has been independently reviewed by 
similarly qualified persons, and appropriate modifications made to 
ensure safety.
    25. 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.

[[Page 10286]]

    26. 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.
    27. 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.
    28. 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.
    29. Transfer of Nationwide Permit Verifications. If the permittee 
sells the property associated with a nationwide permit verification, 
the permittee may transfer the nationwide permit verification to the 
new owner by submitting a letter to the appropriate Corps district 
office to validate the transfer. A copy of the nationwide permit 
verification must be attached to the letter, and the letter must 
contain the following statement and signature:

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

    30. Compliance Certification. Each permittee who receives an NWP 
verification letter from the Corps must provide a signed certification 
documenting completion of the authorized activity and any required 
compensatory mitigation. The success of any required permittee-
responsible mitigation, including the achievement of ecological 
performance standards, will be addressed separately by the district 
engineer. The Corps will provide the permittee the certification 
document with the NWP verification letter. The certification document 
will include:
    (a) A statement that the authorized work was done in accordance 
with the NWP authorization, including any general, regional, or 
activity-specific conditions;
    (b) A statement that the implementation of any required 
compensatory mitigation was completed in accordance with the permit 
conditions. If credits from a mitigation bank or in-lieu fee program 
are used to satisfy the compensatory mitigation requirements, the 
certification must include the documentation required by 33 CFR 
332.3(l)(3) to confirm that the permittee secured the appropriate 
number and resource type of credits; and
    (c) The signature of the permittee certifying the completion of the 
work and mitigation.
    31. 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, if the 
PCN is determined to be incomplete, notify the prospective permittee 
within that 30 day period to request the additional information 
necessary to make the PCN complete. The request must specify the 
information needed to make the PCN complete. As a general rule, 
district engineers 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 until either:
    (1) He or she is notified in writing by the district engineer that 
the activity may proceed under the NWP with any special conditions 
imposed by the district or division engineer; or
    (2) 45 calendar days have passed from the district engineer's 
receipt of the complete PCN and the prospective permittee has not 
received written notice from the district or division engineer. 
However, if the permittee was required to notify the Corps pursuant to 
general condition 18 that listed species or critical habitat might be 
affected or in the vicinity of the project, or to notify the Corps 
pursuant to general condition 20 that the activity may have the 
potential to cause effects to historic properties, the permittee cannot 
begin the activity until receiving written notification from the Corps 
that there is ``no effect'' on listed species or ``no potential to 
cause effects'' on historic properties, or that any consultation 
required under Section 7 of the Endangered Species Act (see 33 CFR 
330.4(f)) and/or Section 106 of the National Historic Preservation (see 
33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 
21, 49, or 50 until the permittee has received written approval from 
the Corps. If the proposed activity requires a written waiver to exceed 
specified limits of an NWP, the permittee may not 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, including the anticipated amount of loss of water of the United 
States expected to result from the NWP activity, in acres, linear feet, 
or other appropriate unit of measure; any other NWP(s), regional 
general permit(s), or individual permit(s) used or intended to be used 
to authorize any part of the proposed project or any related activity. 
The description should be sufficiently detailed to allow the district 
engineer to determine that the adverse effects of the project will be 
minimal and to determine the need for compensatory mitigation. Sketches 
should be provided

[[Page 10287]]

when necessary to show that the activity complies with the terms of the 
NWP. (Sketches usually clarify the project and when provided results in 
a quicker decision. Sketches should contain sufficient detail to 
provide an illustrative description of the proposed activity (e.g., a 
conceptual plan), but do not need to be detailed engineering plans);
    (4) The PCN must include a delineation of wetlands, other special 
aquatic sites, and other waters, such as lakes and ponds, and 
perennial, intermittent, and ephemeral streams, 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 on the project 
site, but there may be a delay if the Corps does the delineation, 
especially if the project site is large or contains many waters of the 
United States. Furthermore, the 45 day period will not start until the 
delineation has been submitted to or completed by the Corps, as 
appropriate;
    (5) If the proposed activity will result in the loss of greater 
than \1/10\-acre of wetlands and a PCN is required, the prospective 
permittee must submit a statement describing how the mitigation 
requirement will be satisfied, or explaining why the adverse effects 
are minimal and why compensatory mitigation should not be required. As 
an alternative, the prospective permittee may submit a conceptual or 
detailed mitigation plan.
    (6) If any listed species or designated critical habitat might be 
affected or is in the vicinity of the project, or if the project is 
located in designated critical habitat, for non-Federal applicants the 
PCN must include the name(s) of those endangered or threatened species 
that might be affected by the proposed work or utilize the designated 
critical habitat that may be affected by the proposed work. Federal 
applicants must provide documentation demonstrating compliance with the 
Endangered Species Act; and
    (7) For an activity that may affect a historic property listed on, 
determined to be eligible for listing on, or potentially eligible for 
listing on, the National Register of Historic Places, for non-Federal 
applicants the PCN must state which historic property may be affected 
by the proposed work or include a vicinity map indicating the location 
of the historic property. Federal applicants must provide documentation 
demonstrating compliance with Section 106 of the National Historic 
Preservation Act.
    (c) Form of Pre-Construction Notification: The standard individual 
permit application form (Form ENG 4345) may be used, but the completed 
application form must clearly indicate that it is a PCN and must 
include all of the information required in paragraphs (b)(1) through 
(7) of this general condition. A letter containing the required 
information may also be used.
    (d) Agency Coordination: (1) The district engineer will consider 
any comments from Federal and state agencies concerning the proposed 
activity's compliance with the terms and conditions of the NWPs and the 
need for mitigation to reduce the project's adverse environmental 
effects to a minimal level.
    (2) For all NWP activities that require pre-construction 
notification and result in the loss of greater than \1/2\-acre of 
waters of the United States, for NWP 21, 29, 39, 40, 42, 43, 44, 50, 
51, and 52 activities that require pre-construction notification and 
will result in the loss of greater than 300 linear feet of intermittent 
and ephemeral stream bed, and for all NWP 48 activities that require 
pre-construction notification, the district engineer will immediately 
provide (e.g., via email, facsimile transmission, overnight mail, or 
other expeditious manner) a copy of the complete 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 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. The comments must explain why the 
agency believes the adverse effects will be more than minimal. If so 
contacted by an agency, the district engineer will wait an additional 
15 calendar days before making a decision on the pre-construction 
notification. The district engineer will fully consider agency comments 
received within the specified time frame concerning the proposed 
activity's compliance with the terms and conditions of the NWPs, 
including the need for mitigation to ensure the net adverse 
environmental effects to the aquatic environment of the proposed 
activity are minimal. The district engineer will provide no response to 
the resource agency, except as provided below. The district engineer 
will indicate in the administrative record associated with each pre-
construction notification that the resource agencies' concerns were 
considered. For NWP 37, the emergency watershed protection and 
rehabilitation activity may proceed immediately in cases where there is 
an unacceptable hazard to life or a significant loss of property or 
economic hardship will occur. The district engineer will consider any 
comments received to decide whether the NWP 37 authorization should be 
modified, suspended, or revoked in accordance with the procedures at 33 
CFR 330.5.
    (3) In cases 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 with either 
electronic files or multiple copies of pre-construction notifications 
to expedite agency coordination.

D. District Engineer's Decision

    1. In reviewing the PCN for the proposed activity, the district 
engineer will determine whether the activity authorized by the NWP will 
result in more than minimal individual or cumulative adverse 
environmental effects or may be contrary to the public interest. For a 
linear project, this determination will include an evaluation of the 
individual crossings to determine whether they individually satisfy the 
terms and conditions of the NWP(s), as well as the cumulative effects 
caused by all of the crossings authorized by NWP. If an applicant 
requests a waiver of the 300 linear foot limit on impacts to 
intermittent or ephemeral streams or of an otherwise applicable limit, 
as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51 or 
52, the district engineer will only grant the waiver upon a written 
determination that the NWP activity will result in minimal adverse 
effects. When making minimal effects determinations the district 
engineer will consider the direct and indirect effects caused by the 
NWP activity. The district engineer will also consider site specific 
factors, such as the environmental setting in the vicinity of the NWP 
activity, the type of resource that will be affected by the NWP 
activity, the functions provided by the aquatic resources that will be 
affected by the NWP activity, the degree or magnitude to which the 
aquatic resources perform those functions, the extent that aquatic 
resource functions will be lost as a result of the NWP activity (e.g., 
partial or complete loss), the duration of the

[[Page 10288]]

adverse effects (temporary or permanent), the importance of the aquatic 
resource functions to the region (e.g., watershed or ecoregion), and 
mitigation required by the district engineer. If an appropriate 
functional assessment method is available and practicable to use, that 
assessment method may be used by the district engineer to assist in the 
minimal adverse effects determination. The district engineer may add 
case-specific special conditions to the NWP authorization to address 
site-specific environmental concerns.
    2. If the proposed activity requires a PCN and will result in a 
loss of greater than \1/10\-acre of wetlands, the prospective permittee 
should submit a mitigation proposal with the PCN. Applicants may also 
propose compensatory mitigation for projects with smaller impacts. The 
district engineer will consider any proposed compensatory mitigation 
the applicant has included in the proposal in determining whether the 
net adverse environmental effects to the aquatic environment of the 
proposed activity 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 activity-specific conditions in the NWP verification 
the district engineer deems necessary. Conditions for compensatory 
mitigation requirements must comply with the appropriate provisions at 
33 CFR 332.3(k). The district engineer must approve the final 
mitigation plan before the permittee commences work in waters of the 
United States, unless the district engineer determines that prior 
approval of the final mitigation plan is not practicable or not 
necessary to ensure timely completion of the required compensatory 
mitigation. 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 proposed compensatory mitigation 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, 
including any activity-specific conditions added to the NWP 
authorization by the district engineer.
    3. If the district engineer determines that the adverse effects of 
the proposed work are more than minimal, then the district engineer 
will notify the applicant either: (a) 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; (b) 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 (c) 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, with activity-specific conditions that state the mitigation 
requirements. The authorization will include the necessary conceptual 
or detailed 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 or has determined that prior 
approval of a final mitigation plan is not practicable or not necessary 
to ensure timely completion of the required compensatory mitigation.

E. 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.

F. Definitions

    Best management practices (BMPs): Policies, practices, procedures, 
or structures implemented to mitigate the adverse environmental effects 
on surface water quality resulting from development. BMPs are 
categorized as structural or non-structural.
    Compensatory mitigation: The restoration (re-establishment or 
rehabilitation), establishment (creation), enhancement, and/or in 
certain circumstances preservation of aquatic resources for the 
purposes of offsetting unavoidable adverse impacts which remain after 
all appropriate and practicable avoidance and minimization has been 
achieved.
    Currently serviceable: Useable as is or with some maintenance, but 
not so degraded as to essentially require reconstruction.
    Direct effects: Effects that are caused by the activity and occur 
at the same time and place.
    Discharge: The term ``discharge'' means any discharge of dredged or 
fill material.
    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.
    High Tide Line: The line of intersection of the land with the 
water's surface at the maximum height reached by a rising tide. The 
high tide line may be determined, in the absence of actual data, by a 
line of oil or scum along shore objects, a more or less continuous 
deposit of fine shell or debris on the foreshore or berm, other 
physical markings or characteristics, vegetation lines, tidal gages, or 
other suitable means that delineate the general height reached by a 
rising tide. The line encompasses spring high tides and other high 
tides that occur with periodic frequency but does not include storm 
surges in which there is a departure from the normal or predicted reach 
of

[[Page 10289]]

the tide due to the piling up of water against a coast by strong winds 
such as those accompanying a hurricane or other intense storm.
    Historic Property: Any prehistoric or historic district, site 
(including archaeological site), building, structure, or other object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. This term 
includes artifacts, records, and remains that are related to and 
located within such properties. The term includes properties of 
traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization and that meet the National Register 
criteria (36 CFR part 60).
    Independent utility: A test to determine what constitutes a single 
and complete non-linear project in the Corps regulatory program. A 
project is considered to have independent utility if it would be 
constructed absent the construction of other projects in the project 
area. Portions of a multi-phase project that depend upon other phases 
of the project do not have independent utility. Phases of a project 
that would be constructed even if the other phases were not built can 
be considered as separate single and complete projects with independent 
utility.
    Indirect effects: Effects that are caused by the activity and are 
later in time or farther removed in distance, but are still reasonably 
foreseeable.
    Intermittent stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of waters of the United States: Waters of the United States 
that are permanently adversely affected by filling, flooding, 
excavation, or drainage because of the regulated activity. Permanent 
adverse effects include permanent discharges of dredged or fill 
material that change an aquatic area to dry land, increase the bottom 
elevation of a waterbody, or change the use of a waterbody. The acreage 
of loss of waters of the United States is a threshold measurement of 
the impact to jurisdictional waters for determining whether a project 
may qualify for an NWP; it is not a net threshold that is calculated 
after considering compensatory mitigation that may be used to offset 
losses of aquatic functions and services. The loss of stream bed 
includes the linear feet of stream bed that is filled or excavated. 
Waters of the United States temporarily filled, flooded, excavated, or 
drained, but restored to pre-construction contours and elevations after 
construction, are not included in the measurement of loss of waters of 
the United States. Impacts resulting from activities eligible for 
exemptions under Section 404(f) of the Clean Water Act are not 
considered when calculating the loss of waters of the United States.
    Non-tidal wetland: A non-tidal wetland is a wetland that is not 
subject to the ebb and flow of tidal waters. The definition of a 
wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous 
to tidal waters are located landward of the high tide line (i.e., 
spring high tide line).
    Open water: For purposes of the NWPs, an open water is any area 
that in a year with normal patterns of precipitation has water flowing 
or standing above ground to the extent that an ordinary high water mark 
can be determined. Aquatic vegetation within the area of standing or 
flowing water is either non-emergent, sparse, or absent. Vegetated 
shallows are considered to be open waters. Examples of ``open waters'' 
include rivers, streams, lakes, and ponds.
    Ordinary High Water Mark: An ordinary high water mark is a line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics, or by other appropriate means that consider 
the characteristics of the surrounding areas (see 33 CFR 328.3(e)).
    Perennial stream: A perennial stream has flowing water year-round 
during a typical year. The water table is located above the stream bed 
for most of the year. Groundwater is the primary source of water for 
stream flow. Runoff from rainfall is a supplemental source of water for 
stream flow.
    Practicable: Available and capable of being done after taking into 
consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Pre-construction notification: A request submitted by the project 
proponent to the Corps for confirmation that a particular activity is 
authorized by nationwide permit. The request may be a permit 
application, letter, or similar document that includes information 
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions 
of a nationwide permit, or by regional conditions. A pre-construction 
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent 
wants confirmation that the activity is authorized by nationwide 
permit.
    Preservation: The removal of a threat to, or preventing the decline 
of, aquatic resources by an action in or near those aquatic resources. 
This term includes activities commonly associated with the protection 
and maintenance of aquatic resources through the implementation of 
appropriate legal and physical mechanisms. Preservation does not result 
in a gain of aquatic resource area or functions.
    Re-establishment: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area and functions.
    Rehabilitation: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing 
natural/historic functions to a degraded aquatic resource. 
Rehabilitation results in a gain in aquatic resource function, but does 
not result in a gain in aquatic resource area.
    Restoration: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former or degraded aquatic resource. 
For the purpose of tracking net gains in aquatic resource area, 
restoration is divided into two categories: re-establishment and 
rehabilitation.
    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper areas associated with riffles. A slower stream 
velocity, a streaming flow, a smooth surface, and a finer substrate 
characterize pools.
    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 riverine, lacustrine, estuarine, and 
marine waters with their adjacent wetlands, non-wetland waters, or 
uplands. Riparian areas provide a variety of ecological functions and 
services and help improve or maintain local water quality. (See general 
condition 23.)

[[Page 10290]]

    Shellfish seeding: The placement of shellfish seed and/or suitable 
substrate to increase shellfish production. Shellfish seed consists of 
immature individual shellfish or individual shellfish attached to 
shells or shell fragments (i.e., spat on shell). Suitable substrate may 
consist of shellfish shells, shell fragments, or other appropriate 
materials placed into waters for shellfish habitat.
    Single and complete linear project: A linear project is a project 
constructed for the purpose of getting people, goods, or services from 
a point of origin to a terminal point, which often involves multiple 
crossings of one or more waterbodies at separate and distant locations. 
The term ``single and complete project'' is defined as that portion of 
the total linear project proposed or accomplished by one owner/
developer or partnership or other association of owners/developers that 
includes all crossings of a single water of the United States (i.e., a 
single waterbody) at a specific location. For linear projects crossing 
a single or multiple waterbodies several times at separate and distant 
locations, each crossing is considered a single and complete project 
for purposes of NWP authorization. However, individual channels in a 
braided stream or river, or individual arms of a large, irregularly 
shaped wetland or lake, etc., are not separate waterbodies, and 
crossings of such features cannot be considered separately.
    Single and complete non-linear project: For non-linear projects, 
the term ``single and complete project'' is defined at 33 CFR 330.2(i) 
as the total project proposed or accomplished by one owner/developer or 
partnership or other association of owners/developers. A single and 
complete non-linear project must have independent utility (see 
definition of ``independent utility''). Single and complete non-linear 
projects may not be ``piecemealed'' to avoid the limits in an NWP 
authorization.
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and best management practices, which 
retain water for a period of time to control runoff and/or improve the 
quality (i.e., by reducing the concentration of nutrients, sediments, 
hazardous substances and other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized stream remains a 
water of the United States.
    Structure: An object that is arranged in a definite pattern of 
organization. Examples of structures include, without limitation, any 
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, 
bulkhead, revetment, riprap, jetty, artificial island, artificial reef, 
permanent mooring structure, power transmission line, permanently 
moored floating vessel, piling, aid to navigation, or any other manmade 
obstacle or obstruction.
    Tidal wetland: A tidal wetland is a wetland (i.e., water of the 
United States) that is inundated by tidal waters. The definitions of a 
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 
328.3(f), respectively. Tidal waters rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters end where the rise and fall of the water surface 
can no longer be practically measured in a predictable rhythm due to 
masking by other waters, wind, or other effects. Tidal wetlands are 
located channelward of the high tide line, which is defined at 33 CFR 
328.3(d).
    Vegetated shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Waterbody: For purposes of the NWPs, a waterbody is a 
jurisdictional water of the United States. If a jurisdictional wetland 
is adjacent--meaning bordering, contiguous, or neighboring--to a 
waterbody determined to be a water of the United States under 33 CFR 
328.3(a)(1)-(6), 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. 2012-3687 Filed 2-17-12; 8:45 am]
BILLING CODE 3720-58-P
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