36040 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

Proposal To Issue and Modify

Nationwide Permits

AGENCY: U.S. Army Corps of Engineers,

DoD.

ACTION: Notice of intent and request for

comments.

SUMMARY: To improve protection of the

environment the Army Corps of

Engineers is proposing changes to its

Nationwide General Permit Program. On

December 13, 1996, the Corps

announced that it would phase out

nationwide permit 26 (NWP 26) which

covered certain activities in isolated

waters and waters above the

‘‘headwaters’’ point on streams.

Specifically, the Corps is proposing to

issue 6 new nationwide permits (NWPs)

and modify 6 existing NWPs to become

effective when NWP 26 expires. In

addition, the Corps is proposing to add

one NWP condition and modify 6

existing NWP conditions, which will

apply to all existing NWPs as well as the

new and modified NWPs proposed in

this notice. These NWPs are activityspecific, and most are restricted to

discharges of dredged or fill material

into non-tidal waters of the United

States. In addition to improving

protection of our aquatic resources, a

principal objective is to ensure that

those activities with truly minimal

impacts are authorized in an efficient

manner by a general permit. In this

regard, we believe that these new and

modified NWPs will authorize those

activities with minimal impacts that are

currently authorized by NWP 26. They

will also authorize like activities with

minimal impacts that occur below the

headwaters. These NWPs will allow the

Corps to improve overall environmental

protection by allowing the Corps to

prioritize its work in non-tidal waters

based on the quality of impacted aquatic

systems and the specific impacts of a

proposed project. Although NWP 26

was originally scheduled to expire on

December 13, 1998, the Corps is

proposing to change the expiration date

to March 28, 1999, to ensure that the

Corps has adequate time to effectively

involve the other agencies and the

public in a new regional conditioning

process. When the Corps first

established the December 13, 1998,

expiration date for NWP 26, we did not

contemplate the extensive process

needed to develop sound regional

conditions. This extension is necessary

since a lapse between the expiration of

NWP 26 and the effective date of the

replacement NWPs is unacceptable and

unnecessary.

The Corps is also proposing to modify

its ‘‘single family home’’ NWP (NWP 29)

to change the acreage limit to 1⁄4 acre,

as discussed at the end of the preamble

to this notice. In the interim, the Corps

is suspending NWP 29 for single family

housing activities that result in the loss

of greater than 1⁄4 acre of non-tidal

waters of the United States, including

non-tidal wetlands. The Corps is also

making available a revised

environmental assessment for NWP 29.

The public is invited to provide

comments on these proposals and is

being given the opportunity to request a

public hearing on these activity-specific

NWPs.

DATES: Comments on the proposed new

and modified NWPs and the proposed

modification of NWP 29 must be

received by August 31, 1998. Comments

on the proposal to extend the expiration

date of NWP 26 to March 28, 1999, must

be received by July 31, 1998.

ADDRESSES: HQUSACE, CECW–OR,

Washington, D.C. 20314–1000.

FOR FURTHER INFORMATION CONTACT: Mr.

David Olson or Mr. Sam Collinson,

CECW–OR, at (202) 761–0199 or http:/

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

cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

The protection and restoration of the

aquatic environment is an integral part

of the Army Corps of Engineers mission.

In its recent Strategic Plan, the Corps

made it clear that this part of its mission

was equal to its more traditional

missions of navigation and flood

damage reduction. Over the past 10

years the Corps has made remarkable

progress in improving environmental

protection through its Regulatory

Program. An example is the substantial

improvements in the Nationwide Permit

program. Through each of the last two

five-year reauthorization cycles, the

Corps has improved the NWP program.

This proposal today takes an additional

important step as the Corps phases out

NWP 26.

While some may not appreciate fully

the import of today’s proposal on

improving environmental protection,

one must only discuss this issue with

those who have implemented the NWPs

for the past 20 years to gain an accurate

account of the substantial progress

today’s action reflects. This proposal is

a reflection of the Corps unequivocal

commitment to its environmental

mission and to wetlands protection.

The Corps is also committed to

reducing regulatory burdens where

possible. Consistent with the President’s

1993 Wetlands Plan, the Corps, along

with other Federal agencies, has made

the Regulatory Program more fair, more

flexible, and more effective. This NWP

proposal also reflects this commitment.

The Corps of Engineers is proposing

new and modified NWPs that will

authorize those activities with minimal

adverse effects on the aquatic

environment that are currently

authorized by NWP 26. This will ensure

the NWP program is based on types of

activities and continues to authorize

work that has no more than minimal

adverse effects on the aquatic

environment. The Corps believes that

the overall protection of the aquatic

environment will be increased by these

new and modified NWPs when

compared to the existing NWP program.

The proposed NWPs will help the Corps

achieve its goal of managing its

workload based on impacts to the

aquatic environment as a whole, not on

impacts to any particular geographic

type of waters, such as isolated waters

or headwater streams. The proposed

new and modified NWPs, along with the

existing NWPs, will allow the Corps to

manage its workload by efficiently

authorizing activities with minimal

adverse effects and focusing its limited

resources on aquatic areas of higher

value. Higher value waters, including

wetlands, will receive additional

protection through increased regional

conditioning of NWPs, case-specific

special conditions, and case-specific

discretionary authority to require a

standard individual permit where

necessary. These measures will ensure

that impacts to these waters authorized

by NWPs are no more than minimal.

The Corps has established permit

thresholds that will allow authorization

of most projects that result in no more

than minimal adverse effects on the

aquatic environment. At the same time,

the Corps has established PCN limits to

ensure that any project that may have

more than minimal adverse effects on

the aquatic environment will be

reviewed. Moreover, since a minimal

adverse effect is still an effect on the

aquatic environment, we will also

require compensatory mitigation, when

appropriate, to ensure that the goal of no

net loss is achieved in the NWP program

and that the cumulative adverse effects

of these activities on the aquatic

environment are minimal. Moreover, the

Corps believes that the proposed NWPs,

along with regional conditioning and

the ability to place special conditions on

NWP authorizations on a case-by-case
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36041

basis, will authorize no more than

minimal individual and cumulative

adverse effects to waters of the United

States. Regional conditions will be

required by each district to further

restrict the use of the NWPs in higher

value aquatic systems.

In the June 17, 1996, issue of the

Federal Register, the Corps proposed to

reissue NWP 26 and requested

comments on several options for

modification of this NWP. In response

to this notice, the Corps received more

than 500 comments concerning NWP

26. Numerous commenters opposed

reissuance of NWP 26. Some

commenters acknowledged the

necessity of NWP 26, but believed that

the NWP must be modified to address

potential cumulative adverse effects.

Many commenters stated that NWP 26

has worked well and that the loss of

NWP 26 would result in increased

regulatory burdens on the public, less

regulatory certainty, unacceptable

workload increases for the Corps,

increased processing times, project

delays, and an overall lessening of the

regulatory program’s ability to protect

waters of the United States. As a result

of the Corps review, the Corps

determined that NWP 26 should be

replaced with activity-specific NWPs,

but in the interim a substantially

modified NWP 26 was reissued on

December 13, 1996, for a period of two

years. This phased approach was

determined to be necessary to minimize

disruption and confusion for the

regulated public and improve

environmental protection. For a

complete discussion of the issues

concerning the reissuance and

modification of NWP 26, please refer to

the December 13, 1996, issue of the

Federal Register (61 FR 65874–65922).

The coordination process to develop

the new and modified NWPs has taken

longer than the Corps expected.

Moreover, the Corps has established a

very time intensive process to

effectively engage other agencies and

the public in developing regional

conditions.

Due to the additional amount of time

required to develop the proposed new

and modified NWPs and regional

conditions, the Corps is proposing to

change the expiration date of NWP 26

to March 28, 1999. Extending the

expiration date of NWP 26 will ensure

fairness to the regulated public by

continuing to provide an NWP for

activities in headwaters and isolated

waters that have minimal adverse

environmental effects until the

proposed activity-specific NWPs that

will replace NWP 26 become effective.

If NWP 26 were to expire on the

originally scheduled date of December

13, 1998, then most project proponents

would have to apply for authorization

through the individual permit process,

although some activities may be

authorized by other NWPs or regional

general permits. For many activities

with minimal adverse environmental

effects, this would result in unnecessary

burdens on the regulated public without

added environmental benefits.

Section 404(e) of the Clean Water Act,

which provides the statutory authority

for the issuance of general permits,

states that general permits (including

nationwide permits) can be issued for

no more than five years. Therefore,

NWP 26 can be in effect for a 5 year

period. However, the Corps decided that

NWP 26 should expire when

replacement NWPs become effective.

We established a schedule for

developing replacement NWPs by

December 13, 1998, and announced that

NWP 26 would expire then. The revised

schedule to develop the new and

modified NWPs now indicates that they

will become effective on March 28,

1999. Based on this schedule, we are

proposing to extend the expiration date

of NWP 26 to March 28, 1999. The

public is invited to provide comments

on the proposal to extend the expiration

date of NWP 26 within 30 days of the

date of this notice. After the 30 day

comment period, the Corps will make a

decision on the proposal to extend the

expiration date of NWP 26, and publish

the decision in the Federal Register.

The replacement of NWP 26 with

activity-specific NWPs will help

implement the President’s Wetlands

Plan, which was issued by the White

House Office on Environmental Policy

on August 24, 1993. A major goal of this

plan is that Federal wetlands protection

programs be fair, flexible, and effective.

To achieve this goal, the Corps

regulatory program must continue to

provide effective protection of wetlands

and other aquatic resources and avoid

unnecessary impacts to private

property, the regulated public, and the

environment. These proposed NWPs

will more clearly address individual

and cumulative impacts to the aquatic

environment, ensure that those impacts

are minimal, address specific applicant

group needs, and provide more

predictability and consistency to the

regulated public. Throughout the

process of developing the new and

modified NWPs, the Corps recognized

the concerns of natural resource

agencies and environmental groups for

the potential level of adverse effects on

the aquatic environment resulting from

these NWPs and the regulated public’s

need for the certainty and flexibility in

the NWP program.

The activity-specific NWPs proposed

in this notice were developed based on

information from several sources: (1)

comments submitted in response to the

December 13, 1996, Federal Register

notice to issue, reissue, and modify the

NWPs; (2) Corps internal

recommendations; (3) data concerning

the types of activities currently

authorized by NWP 26; (4) discussions

with other Federal agencies; and (5)

discussions with both developmental

and environmental stakeholders.

Since NWP 26 was modified and

reissued, the Corps collected additional

data on the types of activities authorized

by NWP 26 to develop these new NWPs.

From May 1, 1997, through December

31, 1997, 83% of the total activities

authorized by NWP 26 fell into 10

categories. Residential development

comprised approximately 24% of the

activities authorized by NWP 26.

Transportation activities accounted for

19% of the NWP 26 authorizations. Six

percent to 8% of NWP 26 authorizations

were for each the following activities:

agricultural activities, retail

developments, industrial developments,

stormwater facilities, and

impoundments. Institutional facilities,

mining activities, and channel

modification activities each comprised

2% to 5% of the NWP 26 authorizations

during this time period.

In response to the December 13, 1996,

Federal Register notice, several

commenters recommended NWPs for

activities that were specifically

authorized by NWP 26. We also

received comments that recommended

modifications to existing NWPs to

authorize additional activities. We

considered all recommendations

received and, where appropriate,

developed a proposed new NWP or

proposed modification of an existing

NWP to authorize that activity. Some

proposals involved activities that did

not require a permit or were exempt

from Section 404 or Section 10 permit

requirements. Where we believed that it

was not appropriate to develop an NWP

for a particular recommended activity,

our reasons are provided elsewhere in

this notice.

In contrast to NWP 26, none of the

proposed new NWPs and the proposed

modifications of existing NWPs are

restricted solely to activities in

headwaters and isolated wetlands.

However, most are limited to work in

non-tidal waters of the United States,

and do not authorize work in tidal

waters (i.e., waters subject to the ebb

and flow of the tide) or in non-tidal

wetlands contiguous (i.e., connected by
36042 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

surface waters) to tidal waters. Some of

the proposed new and modified NWPs

are applicable only in non-Section 10

waters and do not authorize work in

tidal waters or in non-tidal navigable

waters of the United States. The removal

of the headwaters restriction will help

improve consistency and reduce

confusion by eliminating the need to

determine where the median flow of a

waterbody, on an annual basis, is less

than 5 cubic feet per second. In this

proposal, we have clarified that for all

NWPs, the acreage of loss of waters of

the United States, which is the

threshold measurement of the gross

impacts to existing waters for

determining whether a project might

qualify for an NWP, includes the filled

area plus any waters of the United

States that are adversely affected by

flooding, excavation, or drainage as a

result of the project. Furthermore, in

most cases compensatory mitigation

will be required for these losses.

Many of the proposed new and

modified NWPs have preconstruction

notification (PCN) requirements, which

allow the Corps to review proposed

activities on a case-by-case basis to: (1)

place special conditions on specific

projects to ensure that the authorized

impacts will have minimal individual

and cumulative adverse effects on the

aquatic system; or (2) assert

discretionary authority to require a

standard individual permit. These

provisions will ensure that the impacts

authorized by the NWPs will be

minimal. The PCN requirements differ

for each NWP. The PCN threshold is

based on a level of effects on the

existing aquatic ecosystem that requires

review by the District Engineer to

ensure that those effects are minimal.

Each district will identify any areas of

high value waters that require lower

PCN levels to ensure minimal adverse

effects on the aquatic environment.

With the national and district-added

PCN thresholds, any activity below

these limits will have minimal adverse

effects on the aquatic environment.

Many of the proposed NWPs have PCN

requirements for activities that result in

the loss, by filling or excavation, of

greater than 500 linear feet of stream

bed. The term ‘‘stream bed’’ is defined,

for the purpose of the proposed new

NWPs, as a water of the United States

with flowing water (i.e., perennial and

intermittent streams). Ephemeral stream

beds are not subject to this 500 linear

foot PCN requirement. However, Corps

districts may regionally condition

certain NWPs to require notification for

activities that adversely affect

ephemeral streams. District engineers

are responsible for determining if a

particular stream bed is perennial,

intermittent, or ephemeral, based on the

definitions provided below. District

engineers can assert discretionary

authority and require an individual

permit for those activities that they

determine will have more than minimal

individual or cumulative adverse effects

on the aquatic environment. As with all

NWPs, Corps districts will continue to

require that applicants avoid and

minimize impacts on-site.

Section 404(e) of the Clean Water Act

requires that only activities with

minimal adverse environmental effects,

both individually and cumulatively, can

be authorized by general permits.

Activities with more than minimal

adverse impacts are subject to the

individual permit process and the

associated alternatives analysis,

individual public notice procedures,

and other aspects of individual review

that help ensure that potential adverse

effects are fully avoided and minimized

to the maximum extent practicable

before an activity is authorized. On a

national basis, the Corps prescribes

terms and conditions for nationwide

permits to ensure that the NWPs only

authorize activities that have minimal

individual and cumulative adverse

effects on the aquatic environment.

Furthermore, in certain situations to

ensure that activities authorized by

NWPs have minimal adverse effects, the

Corps: (1) requires a specific review

(i.e., a preconstruction notification) so

that activity-specific conditions can be

imposed where necessary; (2) adds

regional conditions on a regional or

geographic basis, to ensure that

activities authorized by the NWPs have

minimal adverse effects; or (3) exercises

discretionary authority to require

individual permits for those activities

that would have more than minimal

adverse effects on the aquatic

environment.

District engineers will normally

require compensatory mitigation to

offset adverse environmental effects to

the aquatic environment that result from

activities authorized by these NWPs,

thus ensuring no more than minimal

cumulative adverse environmental

effects and supporting the goal of no net

loss of aquatic resource functions and

values. Compensatory mitigation can be

accomplished through individual

mitigation projects, through mitigation

banks and through in lieu fee programs.

A focus of all mitigation for NWP

impacts in and around flowing and

other open waters will be to normally

require vegetated buffers, including

upland areas adjacent to open waters.

These buffer areas are vital for

protecting and enhancing water quality.

Compensatory mitigation is necessary

to offset losses of functions and values

of aquatic systems caused by permitted

activities. In 1997, the Corps required

28,631 acres of compensatory mitigation

for 15,989 acres of impacts authorized

by standard permits (which includes

individual permits and letters of

permission). During this same time

period, the Corps required 24,819 acres

of compensatory mitigation for 21,409

acres of impacts authorized by general

permits, including nationwide permits

and regional general permits.

Restoration, enhancement, and creation

comprise the bulk of compensatory

mitigation efforts. Less than 5% of this

compensatory mitigation is

accomplished through preservation of

aquatic resources. In some Corps

districts, such as Savannah District,

preservation of aquatic habitats is used

to augment restoration, enhancement,

and creation efforts. In the Savannah

District, permittees are typically

required to provide restoration,

enhancement, and creation at a 1:1 ratio

of impacts to mitigation, and provide

additional preservation of aquatic

resources, to ensure that there is no net

loss of functions and values as a result

of authorized activities.

Permittees who received an NWP 26

authorization before NWP 26 expires

will have up to 12 months to complete

the authorized activity, provided they

have commenced construction, or are

under contract to commence

construction, prior to the date NWP 26

expires (see 33 CFR 330.6(b)). This

provision applies to all NWP

authorizations unless discretionary

authority has been exercised on a caseby-case basis to modify, suspend, or

revoke the authorization in accordance

with 33 CFR 330.4(e) and 33 CFR

330.5(c) or (d).

The existing NWPs, with the

exception of NWP 26, will remain in

effect until they expire on February 11,

2002, unless otherwise modified,

reissued, or revoked. Some of the

proposed NWPs can be used with

existing NWPs to authorize projects

with minimal individual or cumulative

adverse effects on the aquatic

environment. Any prohibitions or

limitations regarding stacking of the

proposed new or modified NWPs with

existing NWPs or each other will be

addressed in the proposed NWPs.

The Corps believes that substantial

additional protection of the overall

aquatic environment will result from

modification of two NWP conditions.

We are proposing to modify General

Condition 9, previously entitled ‘‘Water
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36043

Quality Certification’’, to require that

post-project conditions do not result in

more than minimal degradation of

downstream water quality. For certain

NWPs, this General Condition will

require the implementation of a water

quality management plan to protect and

enhance aquatic resources. The water

quality management plan may consist of

storm water management techniques

and/or the establishment of vegetated

buffer zones. In many cases, the Corps

will be able to rely on State or local

water quality plans. We are also

proposing to modify former Section 404

Only Condition 6 by changing its title

from ‘‘Obstruction of High Flows’’ to

‘‘Management of Water Flows’’ and

modifying it to require that neither

upstream nor downstream areas are

more than minimally flooded or

dewatered after the project is

completed. This requirement will help

ensure that post-construction effects on

the aquatic environment and populated

areas are further minimized. We are also

modifying other conditions and

consolidating the general and Section

404 only NWP conditions to a single

list, as discussed below.

Ensuring the protection of threatened

and endangered species is a high

priority of the Department of the Army

Regulatory Program, including the

general permit program. Because of

programmatic safeguards and individual

project review, the Corps continues to

believe the NWP program results in no

effect on endangered species.

Notwithstanding this position, we have

requested formal programmatic

consultation with the U.S. Fish and

Wildlife Service (FWS) and National

Marine Fisheries Service (NMFS) to

ensure that the NWP program, including

the proposed new and modified NWPs,

has a formal process to develop any

necessary additional procedures at the

district level. This will ensure that the

program will not jeopardize the

continued existence of any Federally

listed endangered species. The formal

consultation will be initiated as soon as

possible and completed by December

13, 1998.

In addition to the standard NWP

condition for endangered species, the

Corps has required regional conditions

and activity-specific conditions to

address specific endangered species. To

further ensure compliance with the

requirements of ESA, Corps districts

have developed, and will continue to

develop, local operating procedures

(referred to as Standard Local Operating

Procedures for Endangered Species, or

SLOPES) to ensure that districts will

continue to reach a project specific

‘‘may affect’’ determination when

necessary, and thus consult with FWS

and NMFS, where appropriate.

Furthermore, programmatic formal

consultation has been initiated on NWP

29. We expect this consultation will be

completed this summer. Corps districts

will develop additional regional

conditions and SLOPES this summer for

the new and modified NWPs, to ensure

that we fully comply with the

Endangered Species Act.

Overall, the Corps believes that the

proposed changes to the NWP program

will substantially enhance protection of

the aquatic environment while allowing

activities with minimal individual and

cumulative adverse effects on the

aquatic environment to proceed with a

minimum of delay. For example, where

we have proposed higher acreage limits

for mitigated losses, such as NWP B for

master planned development activities,

the applicant must fully protect all

remaining waters in the project area and

offset all losses of aquatic functions and

values within the community. In this

way, the overall aquatic environment

will be maintained, and in many cases

enhanced, by planning for treatment of

stormwater, establishing and/or

maintaining buffers around all aquatic

areas, and placing deed restrictions on

all unimpacted aquatic environments

and associated buffer areas. In addition,

some of these NWPs will authorize all

secondary activities associated with the

primary activity, such as infrastructure

and recreational amenities, with the

impacts for a residential development.

This will discourage piecemealing by

encouraging applicants to present the

total project.

General Issues

In addition to seeking comments on

the proposed new and modified NWPs,

the Corps is soliciting comments on the

following general issues related to the

proposed NWPs: the scope of the new

NWPs, acreage limitations and PCN

thresholds on the proposed NWPs,

assessing cumulative impacts on a

watershed basis, and regional

conditioning of the NWPs. The Corps is

also seeking comments on other issues

related to the NWPs, such as

maintenance of landfill surfaces,

maintenance and filling of ditches

adjacent to roads and railways,

maintenance of water treatment

facilities, the use of mitigation banks in

the NWP program, and expansion of

NWP 31, which are discussed below in

the section entitled ‘‘Other Suggested

NWPs’’.

NEPA Compliance

The Corps recognizes that there has

been, and continues to be, substantial

interest among the public regarding the

potential environmental effects

associated with the implementation of

the Nationwide Permit program. With

the last reissuance of the NWPs in

December 1996, we reemphasized our

commitment to improve data collection

and monitoring efforts associated with

the NWP program, and NWP 26 in

particular. In many instances, these

efforts have already provided critical

information on the use of the NWPs,

overall acreage impacts, affected

resource types, the geographic location

of the activities, and the type of

mitigation provided. This information is

critical in our efforts to make wellinformed permitting and policy

decisions regarding the continued role

of the NWP program and to ensure that

the program continues to authorize only

those activities with minimal individual

and cumulative effects.

We also recognize that this current

process to develop replacement permits

for NWP 26 provides an important

opportunity to further expand the

current tools available for evaluating

and monitoring the environmental

effects associated with this program. We

are committed to ensuring and

demonstrating that the NWP program as

a whole, including the new NWPs

proposed today, authorizes only those

activities with minimal individual and

cumulative environmental effects.

Consistent with this commitment, the

Corps will prepare a programmatic

environmental impact statement (PEIS)

for the entire NWP program. While a

PEIS is not required for the reasons

noted below, the PEIS will provide the

Corps with a comprehensive mechanism

to review the effects of the NWP

program on the environment, with full

participation of other Federal agencies,

States, Tribes, and the public. The Corps

will initiate the PEIS by mid-1999 and

complete it by December 2000. The

Corps plans to complete the PEIS prior

to the next scheduled reissuance of the

NWPs in December 2001.

The National Environmental Policy

Act (NEPA) requires Federal agencies to

prepare an Environmental Impact

Statement (EIS) for major Federal

actions that have a significant impact on

the quality of the human environment.

Notwithstanding our commitment to

complete a PEIS, we have determined

that the NWP program does not

constitute a major Federal action

significantly affecting the human

environment and therefore the

preparation of an EIS is not required by

NEPA. The basis for this determination

is that the NWP program authorizes

only those activities that have minimal

adverse environmental effects on the
36044 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

aquatic environment, both individually

and cumulatively, which is a much

lower threshold than the threshold for

requiring an EIS. We have prepared a

Finding of No Significant Impact

(FONSI) for the NWP program. Copies of

the FONSI are available at the office of

the Chief of Engineers, at each District

office, and on the Corps home page at

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

functions/cw/cecwo/reg/.

Similar to our determination for the

overall NWP program, we have made a

preliminary determination that the

proposed new and modified NWPs do

not constitute a major Federal action

significantly affecting the quality of the

human environment, because the NWPs

authorize only those activities that have

minimal adverse effects on the aquatic

environment, both individually and

cumulatively. In compliance with

NEPA, preliminary environmental

documentation has been prepared for

each proposed NWP and each proposed

modification of an existing NWP. This

documentation includes a preliminary

environmental assessment (EA), a

preliminary FONSI, and, where

relevant, a preliminary Section 404(b)(1)

Guidelines compliance review for each

proposed new and modified NWP.

Copies of these documents are available

for inspection at the office of the Chief

of Engineers, at each Corps district

office, and on the Corps Home Page at

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

functions/cw/cecwo/reg/. Based on

these documents the Corps has

provisionally determined that the

proposed new and modified NWPs

comply with the requirements for

issuance under general permit authority.

Scope of the New NWPs

The applicable waters of the United

States for the proposed and existing

NWPs can be categorized in five ways:

(1) all waters of the United States; (2)

non-tidal waters; (3) non-tidal waters,

excluding non-tidal wetlands

contiguous to tidal waters; (4) nonSection 10 waters; and (5) non-Section

10 waters, excluding wetlands

contiguous to Section 10 waters. The

term ‘‘all waters of the United States’’

includes both Section 10 and Section

404 waters. ‘‘Non-tidal waters’’ are

waters of the United States that are not

subject to the ebb and flow of the tide

(i.e., are located landward of the normal

spring high tides), and may include

non-tidal wetlands contiguous to tidal

waters. ‘‘Non-tidal waters, excluding

non-tidal wetlands contiguous to tidal

waters’’ are limited to non-tidal waters

and wetlands that are not connected by

surface waters to tidal waters or are not

part of a linear aquatic system with a

defined channel to the otherwise

contiguous wetland (see the proposed

definitions of ‘‘contiguous wetland’’ and

‘‘noncontiguous wetland’’, below).

Where non-tidal waters and wetlands

are contiguous to tidal waters, there are

no uplands or other non-jurisdictional

areas separating those non-tidal waters

from the tidal waters. ‘‘Non-Section 10

waters’’ are limited to waters of the

United States, including wetlands,

located above the ordinary high water

mark of Section 10 waters. Wetlands

located below the ordinary high water

mark in Section 10 waters are Section

10 waters. ‘‘Non-Section 10 waters,

excluding wetlands contiguous to

Section 10 waters’’ are limited to waters

and wetlands that are not connected by

surface waters to Section 10 waters;

there may be uplands or other nonjurisdictional areas separating those

waters. Wetlands contiguous to Section

10 waters may be either tidal or nontidal.

Many of the proposed new NWPs

(e.g., NWPs A, B, D, and E) are

applicable only to discharges of dredged

or fill material into non-tidal waters of

the United States, excluding wetlands

that are contiguous to tidal waters. A

definition of ‘‘contiguous wetland’’ has

been proposed in the definition section

of this notice. Proposed NWPs C and F

are applicable only to non-Section 10

waters of the United States. For the

proposed modification to NWP 12, the

construction of substations and access

roads is authorized only in non-Section

10 waters, but the construction of utility

lines and foundations for overhead

utility lines may be authorized in

Section 10 waters. The proposed

modifications to NWP 27 allow wetland

and riparian restoration in non-tidal

waters of the United States, while

limiting stream enhancement projects to

non-Section 10 waters. The proposed

modification to NWP 7 may authorize

work in navigable waters of the United

States (i.e., Section 10 waters). Crushed

and broken stone and hard rock/mineral

mining activities authorized by

proposed NWP E can occur only in nontidal waters of the United States that are

not contiguous to tidal waters. The

activities authorized by the proposed

modification to NWP 40 are limited to

non-tidal waters, including activities in

non-tidal wetlands contiguous to tidal

waters.

Acreage Limitations and PCN

Thresholds

The Corps is seeking comments on the

acreage limitations and PCN thresholds

for the proposed new NWPs and the

proposed modifications to existing

NWPs. The Corps will review and

consider acreage limits that are smaller

or greater than those proposed. If the

Corps believes that an acreage limit

substantially higher than proposed may

be appropriate, then a new proposal

with an opportunity to comment would

be published in the Federal Register.

For the new NWPs, the acreage

limitations range from 1 acre for NWP

D to 10 acres for NWP B. NWP F is

limited to the minimum necessary to

reconfigure the drainage ditch. The

upper limits for the proposed

modifications to existing NWPs are

highly variable. NWP 27 will continue

to have no acreage limit, since it

authorizes projects that restore or

enhance the aquatic environment. The

acreage limits for the other proposed

modifications range from 1⁄3 acre for

private roads under NWP 14 to 3 acres

for NWP 40. The proposed modification

to NWP 7 will not have an acreage

limitation, but will restrict the work to

the minimum necessary to restore the

facility to its original configuration.

The PCN threshold for many of the

proposed new NWPs and modifications

to existing NWPs will be the loss of

greater than 1⁄3 acre of waters of the

United States. In addition, there are

PCN requirements for impacts to open

waters and streams for some of these

NWPs. NWP A requires a PCN for any

impacts to open waters below the

ordinary high water mark. NWP B

requires a PCN for all activities. NWPs

C and D and the proposed modification

of NWP 40 require a PCN if greater than

500 linear feet of stream bed is filled or

excavated. NWP E and the proposed

modification to NWP 7 will require

notification for all activities. NWP F

will require notification for any ditch

reconfiguration that involves sidecasting

excavated material into waters of the

United States. The proposed

modifications to NWP 3 will require

notification for the removal of

accumulated sediments and debris in

the vicinity of existing structures and

for restoration of upland areas damaged

by storms, floods, or other discrete

events that affect greater than 1⁄3 acre of

waters of the United States. The repair,

rehabilitation, or replacement of

currently serviceable structures or fills

will not require notification under the

proposed modification of NWP 3.

Mitigation

A requirement of the NWPs is that

project proponents must avoid and

minimize impacts to waters of the

United States at the project site to the

maximum extent practicable. (See

General Condition 20.) For those

unavoidable impacts to waters of the

United States, including wetlands,
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36045

compensatory mitigation may be

required, either through regional

conditioning or on a case-by-case basis.

Compensatory mitigation will normally

be required by district engineers for

those projects which require notification

(i.e., impacts to more than 1⁄3 acre of

waters of the United States for most of

the proposed NWPs). Compensatory

mitigation will be required by Corps

districts to offset the adverse

environmental effects to the aquatic

ecosystem of the proposed work to a

level that ensures no more than minimal

cumulative adverse environmental

effects.

There are several ways that a

permittee can provide compensatory

mitigation for a project that is

authorized by NWPs. The permittee can

restore, create, enhance, or preserve

wetlands or other aquatic habitats to

replace the functions and values of the

wetlands and other waters of the United

States that are lost as a result of the

project. In most situations, establishing

or maintaining a vegetated buffer,

including uplands adjacent to open

waters, will be an important part of a

mitigation plan. Another method of

compensatory mitigation is mitigation

banks. A mitigation bank is a site where

wetlands or other aquatic resources are

restored, created, enhanced, or

preserved to provide compensatory

mitigation in advance of the authorized

impacts. The entity that developed the

mitigation bank provides these aquatic

resources in return for payment from the

permittee. Federal guidance for the

establishment, use, and operation of

mitigation banks was published in the

Federal Register on November 28, 1995

(60 FR 58605–58614). A third method of

compensatory mitigation is in lieu fee

programs, which may be used to offset

losses of waters of the United States. In

lieu fee programs are typically operated

by States, counties, and private and

public organizations who protect,

restore, and enhance open space,

including waters of the United States.

Permittees may use in lieu fee programs

that protect, enhance, or restore

wetlands, riparian corridors, and open

water areas, including upland buffers

which protect water quality. The

permittee pays a fee to the operator of

the in lieu fee program in exchange for

the protection, enhancement, and

restoration of these areas. In lieu fee

programs should be watershed based

and focused in areas where restoring,

enhancing, and preserving the aquatic

system and associated uplands will

provide the greatest overall protection of

that particular watershed. Regardless of

the method used to provide

compensatory mitigation, district

engineers have the discretionary

authority to determine the type and

quantity of compensatory mitigation

that is appropriate to replace lost

aquatic functions and values.

Cumulative Impacts

Cumulative adverse effects on the

aquatic environment caused by

activities authorized by NWPs, regional

general permits, and individual permits

must be monitored by the districts on a

watershed basis. Assessment of

cumulative impacts on a watershed

basis is the only technically sound

approach and must focus on essential

aquatic functions and values. No

determination of minimal individual

and cumulative adverse effects can be

made on a national basis, because the

functions and values of aquatic

resources vary considerably across the

nation and cannot be monitored or

assessed by Corps headquarters.

Individual districts are better suited to

assess cumulative impacts because they

have a better understanding of the local

conditions and processes used to

evaluate whether cumulative impacts to

the aquatic environment in a particular

watershed will be more than minimal as

a result of work authorized by the

Corps. In some watersheds, a large

acreage of loss of waters offset with

appropriate compensatory mitigation

could occur and result in no more than

minimal cumulative adverse effects on

that watershed. Similar wetland losses

in other watersheds could exceed the

minimal impact threshold, if the

wetlands in that watershed were of high

value, or if historic wetland losses in

that watershed were extensive, making

the remaining wetlands especially

valuable due to the scarcity of that

habitat type. Therefore, each district

generally monitors the losses of waters

of the United States in each watershed,

as well as the gains through restoration,

enhancement, creation, and

preservation of aquatic resources, to

determine whether the effects of these

actions result in more than minimal

cumulative adverse effects on the

aquatic environment. Regional

conditions can be used by districts to

allow the continued use of these NWPs

while making certain that the individual

and cumulative adverse environmental

effects to the aquatic ecosystem are not

more than minimal. The Corps has

established a process on a nationwide

basis (regional conditioning), a

requirement that each district

compensate for impacts through

mitigation, as well as nationwide PCN

limits, all of which will ensure no more

than minimal adverse effects will occur

on a cumulative basis. The Corps will

continue to work towards the goal of no

net loss of functions and values of the

Nation’s aquatic resources.

Division engineers can revoke any of

the proposed NWPs in aquatic

environments of particularly high value

or in specific geographic areas (e.g.,

watersheds), if they believe that use of

particular NWPs in these areas will

result in more than minimal individual

and cumulative adverse environmental

effects to the aquatic ecosystem. The

proposed NWPs may be revoked where

districts have implemented

programmatic general permits (PGPs) for

similar activities, as long as the PGP

provides at least the level of protection

of the aquatic environment that the

Corps does through its NWP program.

Data Collection by Corps Districts

Corps districts use databases to collect

information concerning permit

applications, issued standard permits,

issued general permit authorizations,

denied permit applications, and

enforcement activities. Most districts

utilize the Regulatory Analysis and

Management System (RAMS and

RAMSII). The Corps has been

continuously improving its data

collection efforts, especially for the

NWP Program. Districts have been

collecting the following information for

all permit actions, including NWP

authorizations:

• The name of the permit applicant.

• The description and location of the

work.

• The amount of requested impacts to

non-tidal and/or tidal wetlands, in

acres.

• The amount of authorized impacts

to non-tidal and/or tidal wetlands, in

acres.

• The amount of compensatory

mitigation provided by the permittee, in

acres of non-tidal and/or tidal wetlands

restored, enhanced, created, or

preserved.

• The amount of non-tidal and/or

tidal wetlands impacted as a result of an

unauthorized activity, in acres.

• The amount of non-tidal and/or

tidal wetlands restored as a result of an

enforcement action, in acres.

Since May 1, 1997, districts have been

required to collect additional

information on the environmental

impacts of the NWPs. Wetland impacts

are entered in the database as acres of

wetlands permitted to be filled,

excavated, drained, and flooded. Stream

impacts are quantified in linear feet of

stream bed that are permitted to be

impacted by an activity that involves

filling or excavation within a stream.

The Corps is also collecting data on the
36046 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

types of waters impacted (i.e., estuarine,

lacustrine, marine, palustrine, or

riverine), based on the Cowardin

classification system. As resources

permit, Corps districts may use the

remainder of the Cowardin

classification system to better define the

types of aquatic habitats being

impacted. The United States Geological

Survey (U.S.G.S.) hydrological unit code

in which the affected waterbody is

located is also entered into the database.

The U.S.G.S. hydrological unit code

system identifies over 2,000 watersheds

nationwide. Wetland mitigation is

entered in the database as acres of

wetlands that are required to be

restored, created, enhanced, and

preserved. Mitigation for impacts

authorized by NWPs is also tracked by

the method of mitigation (i.e., mitigation

provided by permittee, mitigation bank,

or some other method, such as an in lieu

fee program) and acreage of

compensatory mitigation.

For the NWP program, the Corps is

monitoring: (1) the number of verified

authorizations; (2) the number of

requests where discretionary authority

was exercised because the activity

would have resulted in more than

minimal adverse effects; (3) the number

of NWP authorization requests that were

denied and an individual permit review

was required; (4) the number of NWP

authorization requests that were

withdrawn because no permit was

required; (5) the number of NWP

authorization requests that were

withdrawn based on the applicant’s

decision; and (6) the number of NWP

authorization requests that were

withdrawn because the Corps received

more than one request for the same

project (i.e., an accounting error

occurred).

In addition, the Corps is collecting

data on the impact of the NWPs on

Federally-listed endangered and

threatened species and their critical

habitat. The Corps is monitoring

whether or not a particular activity is

proposed in critical habitat for a

Federally-listed endangered or

threatened species. The Corps is also

collecting data on which endangered or

threatened species are involved in

verified NWP activities, as well as the

ESA determination for that activity (i.e.,

no effect, not likely to adversely affect,

no jeopardy/no adverse modification, or

jeopardy/adverse modification).

As part of its effort to develop NWPs

to replace NWP 26, the Corps has been

collecting more data on the types of

activities authorized by NWP 26. For

this data collection effort, these types of

activities are classified as follows:

institutional, agricultural, silvicultural,

mining aggregates, mining other, retail

individual, retail multiple, residential

multiple, industrial, transportation,

storm water management,

impoundment, treatment facility, or

‘‘other’’. The Corps is also classifying

these activities into the following

categories: commercial, noncommercial, and governmental. For

every NWP action, the location of the

impact area within the watershed is

recorded as either: (1) above headwaters

or in isolated waters, or (2) below

headwaters and not in isolated waters.

When NWP 26 expires, the Corps will

no longer collect the data mentioned in

this paragraph.

Data collection requires a balance

between the amount of work required to

evaluate permit applications and the

usefulness of the data to monitor the

impacts of the authorized activities on

the aquatic environment. The amount

and types of collected information

should be limited to the data that is

needed for cumulative impact

assessment while allowing districts the

time and personnel resources to

effectively evaluate permit applications

and conduct enforcement activities.

Corps districts will continue to monitor

regulated activities on a watershed basis

to ensure that the activities authorized

by NWPs do not result in more than

minimal cumulative adverse effects on

the aquatic environment in a particular

watershed. In addition, data collection

helps the Corps monitor the effects of

authorized activities on endangered and

threatened species. In the future, the

Corps will evaluate our current overall

data collection efforts on standard and

general permits, including NWPs, to

better and more consistently assess the

effects of these actions on the aquatic

environment.

Process for Issuing the New and

Modified NWPs

The process for issuing the proposed

new and modified NWPs is illustrated

in Figure 1. The regional conditioning

and 401/CZM certification processes are

also illustrated in Figure 1. The

proposal in this Federal Register is the

beginning of this process. During the 60-

day comment period, there will be a

public hearing in Washington, DC to

solicit comments on the proposed new

and modified NWPs. We will initially

review the comments received in

response to this Federal Register notice

with a task force staffed by Corps

regulatory field personnel. Upon

completion of our initial review of the

comments, we will complete an initial

draft of the final NWPs and begin

agency coordination; this process will

last approximately 2 months. After

agency coordination is finished, we will

complete the final version of the NWPs

for publication in the Federal Register

by December 28, 1998. The State 401/

CZM agencies will have 60 days to

complete their certification decisions.

The Corps will then finalize its regional

conditions and then certify that the

NWPs, with any regional conditions or

geographic revocations, will only

authorize activities with minimal

adverse environmental effects, both

individually and cumulatively. The

NWPs will become effective 90 days

later, as NWP 26 expires. The Corps

regional conditioning and 401/CZM

certification processes are discussed

elsewhere in this notice.

BILLING CODE 3710–92–p
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36047

BILLING CODE 3710–92–C
36048 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

Regional Conditioning of Nationwide

Permits

As previously discussed in this

notice, the Corps is committed to

developing a package of replacement

permits with demonstrably less

environmental impact than the permit

they replace. An important element in

achieving this goal is the successful

implementation of a significantly

improved regionalization process. The

coordinated involvement of States,

Tribes, the public, and others, at the

District level, will assist the Corps in

identifying appropriate conditions and

in developing permits that ensure

effective protection at the local level of

wetlands and other water resources.

Moreover, effective regional

conditioning of the NWPs by the Corps

Districts will ensure compliance with

the statutory requirement that the NWPs

result in no more than minimal adverse

effects on the aquatic environment and

will support the Administration’s goal

of no net loss of aquatic functions and

values on a watershed and

programmatic basis.

Although a regionalization process

has been required during past

reissuances of the NWPs, we recognize

that those efforts were not always the

most effective in ensuring the

development of appropriate conditions

in each Corps District. We are confident,

however, that the process proposed in

today’s notice is fundamentally different

from those past approaches and will

yield an improved environmental result

that makes sense for local watersheds

throughout the country. In general

terms, the new approach provides the

public, as well as other Federal and

State/Tribal agencies, with two

opportunities to comment on proposed

Corps regional conditions before they

are finalized, involves a more active and

coordinated role for the Federal

resource agencies throughout the

process, and results in final decision

documents that include certifications by

each Division Engineer that each NWP,

as conditioned, will authorize only

minimal adverse environmental effects.

The regionalization process is outlined

in greater detail below.

There are two types of regional

conditions: conditions added as part of

the Section 401 water quality

certification/Coastal Zone Management

Act (401/CZM) process and conditions

added by the Corps Divisions after

consultation with Corps Districts, other

agencies, and the public. The 401/CZM

regional conditions for the proposed

NWPs automatically become regional

conditions on those NWPs. However, if

the division engineer determines that

those conditions do not meet the

provisions of 33 CFR 325.4, the 401

certification and/or CZM concurrence

will be treated as a denial without

prejudice. The 401/CZM regional

conditions must be announced by the

final Corps public notice concerning the

final NWPs. Corps regional conditions

should generally not, but may, duplicate

401/CZM regional conditions. Corps

regional conditions are added to NWPs

by division engineers after a public

notice comment period. Corps regional

conditions cannot increase the terms or

limits of the NWPs, delete or modify

NWP conditions, change or be

inconsistent with Corps regulations, be

unenforceable, require an individual

401 water quality certification or CZM

concurrence, or require another agency

decision, review, or approval.

When each Corps district issues its

initial public notice for the proposed

NWPs, approximately concurrent with

this Federal Register notice, the public

notice will include: (1) Corps regional

conditions for NWP 26, if any, that are

applicable to any of the proposed

NWPs; (2) the existing Corps regional

conditions, if any, for the NWPs that are

proposed to be modified (i.e., NWPs 3,

7, 12, 14, 27, and 40); and (3) any

additional Corps regional conditions

that the district is proposing at that

time. This initial public notice will also

request comments or suggestions for

additional Corps regional conditions for

the NWPs. The initial public notice may

also include, for informational purposes

only, any State/tribal 401/CZM regional

conditions for NWP 26 and for the

NWPs that are proposed to be modified.

The public does not have the

opportunity to comment on the State/

tribal 401/CZM regional conditions

through the Corps. There is a separate

State/tribal process that involves the

public regarding State/tribal 401/CZM

certifications. Each district will

announce the final State/tribal 401/CZM

regional conditions in the final NWP

public notice. Each district may also

propose Corps regional conditions for

any existing NWP in this initial public

notice.

The initial public notice will request

that the general public and other

agencies submit comments on the NWPs

and any regional conditions proposed

by the Corps, to suggest additional

Corps regional conditions, or to suggest

specific watersheds or waterbodies

where Corps regional conditions should

be implemented, or geographic areas or

specific watersheds or waterbodies

where certain NWPs should be

suspended or revoked. After the close of

the comment period for the initial

public notice, each district will

coordinate with the Federal and State

resource agencies to develop additional

Corps regional conditions. In addition,

each district will hold a public meeting

to discuss regional conditioning of the

NWPs with the public and

representatives of Federal, State, tribal,

and local agencies. Based on the initial

input, the Corps will develop proposed

regional conditions and each district

will issue a second public notice to

solicit comments on those proposed

Corps regional conditions. After the

close of the comment period for the

second public notice, each district will

coordinate with the Federal and State

resource agencies to develop final Corps

regional conditions. Prior to the

publication of the final NWPs in the

Federal Register, the District Engineer

will meet with the Regional

Administrator of EPA and the Regional

Directors of FWS and NMFS to discuss

the proposed regional conditions and

resolve any disputes concerning Corps

regional conditions.

Prior to the date the NWPs become

effective, each Division Engineer will

prepare supplemental decision

documents addressing the regional

conditions for each NWP. Each decision

document will include a statement, by

the Division Engineer, certifying that the

Corps regional conditions imposed on

the NWPs will ensure that those NWPs

will authorize only activities with

minimal adverse effects. After the

Division Engineer establishes the Corps

regional conditions, each district will

issue final public notices announcing

the final 401/CZM regional conditions

and Corps regional conditions. Each

district may propose additional Corps

regional conditions in future public

notices.

Corps regional conditions will be

tailored to the issues related to the

aquatic environment within each

district, and will be used to ensure that

the effects of the NWP program on the

aquatic environment are minimal, both

individually and cumulatively. Corps

regional conditions can cover a large

geographic area (e.g., a State or county),

a particular waterbody or watershed, or

a specific type of water of the United

States (e.g., trout streams). Examples of

Corps regional conditions that may be

used by districts to restrict the use of the

NWPs include:

• Restricting the types of waters of

the United States where the NWPs may

be used (e.g., fens, hemi-marshes,

prairie potholes, bottomland

hardwoods, etc.) or prohibiting the use

of some or all of the NWPs in those

types of waters or in specific

watersheds;
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36049

• Restricting or prohibiting the use of

NWPs in areas covered by a Special

Area Management Plan, or an Advanced

Identification study with associated

regional general permits;

• Adding ‘‘Notification’’

requirements to NWPs to require PCNs

for all work in certain watersheds or

certain types of waters of the United

States, or lowering the PCN threshold;

• Reducing the acreage thresholds in

certain types of waters of the United

States;

• Revoking certain NWPs on a

geographic or watershed basis;

• Restricting activities authorized by

NWPs to certain times of the year in

certain waters of the United States, to

minimize the adverse effects of those

activities on areas used by fish or

shellfish for spawning, nesting wildlife,

or other ecologically cyclical events.

The Corps regional conditions

implemented by each district do not

supersede the general conditions of the

nationwide permit program. The general

conditions address the Endangered

Species Act, the National Historic

Preservation Act of 1966, the Wild and

Scenic Rivers Act, Section 401 water

quality certification, Coastal Zone

Management, navigation, etc. Given the

extent of the coordination already

mandated by Federal law, the addition

of regional conditions at the State,

Tribal, watershed, or geographic level

will help ensure that important public

interest factors are considered when

evaluating projects for NWP

authorization.

Comments on regional issues and

regional conditions must be sent to the

appropriate District Engineer, as

indicated below:

Alabama

Mobile District Engineer, ATTN:

CESAM–OP–S, 109 St. Joseph

Street, Mobile, AL 36602–3630

Alaska

Alaska District Engineer, ATTN:

CEPOA–CO–R, P.O. Box 898,

Anchorage, AK 99506–0898

Arizona

Los Angeles District Engineer, ATTN:

CESPL–CO–R, P.O. Box 2711, Los

Angeles, CA 90053–2325

Arkansas

Little Rock District Engineer, ATTN:

CESWL–CO–P, P.O. Box 867, Little

Rock, AR 72203–0867

California

Sacramento District Engineer, ATTN:

CESPK–CO–O, 1325 J Street,

Sacramento, CA 95814–4794

Colorado

Albuquerque District Engineer,

ATTN: CESPA–CO–R, 4101

Jefferson Plaza NE, Rm 313,

Albuquerque, NM 87109

Connecticut

New England District Engineer,

ATTN: CENAE–OD–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–CO–R, P.O. Box 4970,

Jacksonville, FL 32202–4412

Georgia

Savannah District Engineer, ATTN:

CESAS–OP–F, P.O. Box 889,

Savannah, GA 31402–0889

Hawaii

Honolulu District Engineer, ATTN:

CEPOH–ET–PO, Building 230, Fort

Shafter, Honolulu, HI 96858–5440

Idaho

Walla Walla District Engineer, ATTN:

CENWW–OP–RF, 210 N. Third

Street, City-County Airport, Walla

Walla, WA 99362–1876

Illinois

Rock Island District Engineer, ATTN:

CEMVR–RD, P.O. Box 004, Rock

Island, IL 61204–2004

Indiana

Louisville District Engineer, ATTN:

CELRL–OR–F, P.O. Box 59,

Louisville, KY 40201–0059

Iowa

Rock Island District Engineer, ATTN:

CEMVR–RD, P.O. Box 2004, Rock

Island, IL 61204–2004

Kansas

Kansas City District Engineer, ATTN:

CENWK–OD–P, 700 Federal

Building, 601 E. 12th Street, Kansas

City, MO 64106–2896

Kentucky

Louisville District Engineer, ATTN:

CELRL–OR–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–OD–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–OD–R, 696 Virginia

Road, Concord, MA 01742–2751

Michigan

Detroit District Engineer, ATTN:

CELRE–CO–L, P.O. Box 1027,

Detroit, MI 48231–1027

Minnesota

St. Paul District Engineer, ATTN:

CEMVP–CO–R, 190 Fifth Street

East, St. Paul, MN 55101–1638

Mississippi

Vicksburg District Engineer, ATTN:

CEMVK–CO–0, 201 N. Frontage

Road, Vicksburg, MS 39180–5191

Missouri

Kansas City District Engineer, ATTN:

CENWK–OD–P, 700 Federal

Building, 601 E. 12th Street, Kansas

City, MO 64106–2896

Montana

Omaha District Engineer, ATTN:

CENWO–OP–R, 215 N. 17th Street,

Omaha, NE 68102–4978

Nebraska

Omaha District Engineer, ATTN:

CENWO–OP–R, 215 N. 17th Street,

Omaha, NE 68102–4978

Nevada

Sacramento District Engineer, ATTN:

CESPK–CO–O, 1325 J Street,

Sacramento, CA 95814–2922

New Hampshire

New England District Engineer,

ATTN: CENAE–OD–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: CESWA–CO–R, 4101

Jefferson Plaza NE, Rm 313,

Albuquerque, NM 87109

New York

New York District Engineer, ATTN:

CENAN–OP–R, 26 Federal Plaza,

New York, NY 10278–9998

North Carolina

Wilmington District Engineer, ATTN:

CESAW–CO–R, P.O. Box 1890,

Wilmington, NC 28402–1890

North Dakota

Omaha District Engineer, ATTN:

CENWO–OP–R, 215 North 17th

Street, Omaha, NE 68102–4978

Ohio

Huntington District Engineer, ATTN:

CELRH–OR–F, 502 8th Street,

Huntington, WV 25701–2070

Oklahoma

Tulsa District Engineer, ATTN:

CESWT–OD–R, P.O. Box 61, Tulsa,

OK 74121–0061

Oregon

Portland District Engineer, ATTN:

CENWP–PE–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–OD–R, 696 Virginia

Road, Concord, MA 01742–2751
36050 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

South Carolina

Charleston District Engineer, ATTN:

CESAC–CO–P, P.O. Box 919,

Charleston, SC 29402–0919

South Dakota

Omaha District Engineer, ATTN:

CENWO–OP–R, 215 North 17th

Street, Omaha, NE 68102–4978

Tennessee

Nashville District Engineer, ATTN:

CELRN–OR–F, P.O. Box 1070,

Nashville, TN 37202–1070

Texas

Ft. Worth District Engineer, ATTN:

CESWF–OD–R, P.O. Box 17300, Ft.

Worth, TX 76102–0300

Utah

Sacramento District Engineer, ATTN:

CESPK–CO–O, 1325 J Street, CA

95814–2922

Vermont

New England District Engineer,

ATTN: CENAE–OD–R, 696 Virginia

Road, Concord, MA 01742–2751

Virginia

Norfolk District Engineer, ATTN:

CENAO–OP–R, 803 Front Street,

Norfolk, VA 23510–1096

Washington

Seattle District Engineer, ATTN:

CENWS–OP–RG, P.O. Box 3755,

Seattle, WA 98124–2255

West Virginia

Huntington District Engineer, ATTN:

CELRH–OR–F, 502 8th Street,

Huntington, WV 25701–2070

Wisconsin

St. Paul District Engineer, ATTN:

CEMVP–CO–R, 190 Fifth Street

East, St. Paul, MN 55101–1638

Wyoming

Omaha District Engineer, ATTN:

CENWO–OP–R, 215 North 17th

Street, NE 68102–4978

District of Columbia

Baltimore District Engineer, ATTN:

CENAB–OP–R, P.O. Box 1715,

Baltimore, MD 21203–1715

Pacific Territories

Honolulu District Engineer, ATTN:

CEPOH–ET–PO, Building 230, Fort

Shafter, Honolulu, HI 96858–5440

Puerto Rico & Virgin Islands

Jacksonville District Engineer, ATTN:

CESAJ–CO–R, P.O. Box 4970,

Jacksonville, FL 32202–4412

State (or Tribal) Certification of

Nationwide Permits

State or tribal water quality

certification pursuant to Section 401 of

the Clean Water Act, or waiver thereof,

is required for activities authorized by

NWPs which may result in a discharge

into waters of the United States. In

addition, any State with a Federally

approved Coastal Zone Management

(CZM) Plan must agree with the Corps

determination that activities authorized

by NWPs which are within, or will

affect any land or water uses or natural

resources of the State’s coastal zone, are

consistent with the CZM plan. Section

401 water quality certifications and/or

CZM consistency determinations may

be conditioned, denied, or authorized

for parts of the NWPs.

The Corps believes that, in general,

the activities authorized by the NWPs

will not violate State or tribal water

quality standards and will be consistent

with State CZM Plans. The NWPs are

conditioned to ensure that adverse

environmental effects will be minimal

and are the types of activities that

would be routinely authorized, if

evaluated under the individual permit

process. The Corps recognizes that in

some States or tribes there will be a

need to add regional conditions or

individual State or tribal review for

some activities to ensure compliance

with State or tribal water quality

standards or consistency with State

CZM Plans. The Corps goal is to develop

such conditions so that the States or

tribes can issue 401 water quality

certifications or CZM consistency

agreements. Therefore, each Corps

district will initiate discussions with

their respective States or tribes, as

appropriate, following publication of

this proposal to discuss issues of

concern and identify regional

modification and other approaches to

the scope of waters, activities,

discharges, and notification, as

appropriate, to resolve these issues.

Note that there will be some States

where an SPGP has been adopted and

the NWPs have been wholly or partially

revoked. Concurrent with today’s

proposal, Corps districts may be

proposing modification or revocation of

the NWPs in States where SPGPs will be

used in place of some or all of the NWP

program.

Section 401 of the Clean Water Act:

This Federal Register notice of these

NWPs serves as the Corps application to

the States, tribes, or EPA, where

appropriate, for 401 water quality

certification of the activities authorized

by these NWPs. The States, tribes, and

EPA, where appropriate, are requested

to issue, deny, or waive certification

pursuant to 33 CFR 330.4(c) for these

NWPs.

Proposed NWPs A, B, C, D, E, and F,

and the proposed modifications to

NWPs 12, 14, 27, and 40 involve

activities which would result in

discharges and therefore 401 water

quality certification is required.

The proposed modifications to NWPs

3 and 7 involve various activities, some

of which may result in a discharge and

require 401 water quality certification

and others of which do not. State denial

of 401 water quality certification for any

specific NWP affects only those

activities which may result in a

discharge. For those activities not

involving discharges, the NWP remains

in effect.

If a State denies a 401 water quality

certification for certain activities within

that State, then the Corps will deny

NWP authorization for those activities

without prejudice. Corps districts will

issue provisional NWP verification

letters upon receipt of a PCN for such

projects. The provisional verification

letter will contain all general and

regional conditions as well as any

project specific conditions the Corps

determines are necessary, and will

notify the applicant that they must

obtain a project specific Section 401

water quality certification, or waiver

thereof, prior to starting work in waters

of the United States. Anyone wanting to

perform such activities where a PCN is

not required must first obtain a project

specific 401 water quality certification

or waiver thereof from the State before

proceeding under the NWP. This

requirement is provided at 33 CFR

330.4(c).

Section 307 of the Coastal Zone

Management Act (CZMA): This Federal

Register notice serves as the Corps

determination that the activities

authorized by these NWPs are

consistent with States’ CZM programs,

where applicable. This determination is

contingent upon the addition of State

CZM conditions and/or regional

conditions or the issuance by the State

of an individual consistency

concurrence, where necessary. The

States are requested to agree or disagree

with the consistency determination

pursuant to 33 CFR 330.4(d) for these

NWPs.

The Corps CZMA consistency

determination only applies to NWP

authorizations for activities that are

within, or affect any land or water uses

or natural resources of a State’s coastal

zone. NWP authorizations for activities

that are not within or would not affect

a State’s coastal zone are not contingent

on such State’s agreement or

disagreement with the Corps

consistency determinations.

If a State disagrees with the Corps

consistency determination for certain

activities, then the Corps will deny

authorization for those activities

without prejudice. Corps districts will

issue provisional NWP verification

letters upon receipt of a PCN for such

projects. The provisional verification

letter will contain all general and

regional conditions as well as any

project specific conditions the Corps
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36051

determines are necessary, and will

notify the applicant that they must

obtain a project specific CZMA

consistency determination prior to

starting work in waters of the United

States. Anyone wanting to perform such

activities where a PCN is not required

must present a consistency certification

to the appropriate State agency for

concurrence. Upon concurrence with

such consistency certifications by the

State, the activity would be authorized

by the NWP. This requirement is

provided at 33 CFR 330.4(d).

Discussion of Proposed Nationwide

Permits

The following is a discussion of the

new NWPs we are proposing to issue.

We have identified these NWPs by

letters received in response to the

December 13, 1996, Federal Register,

Final Notice of Issuance, Reissuance,

and Modification of Nationwide Permits

(61 FR 65874) and as a result of a

workshop at the Corps 1997 Biennial

National Regulatory Program

Conference. If issued, they would be

placed at a reserved NWP number or

given a new number. The proposed

modification to NWP 29 is discussed at

the end of the preamble.

A. Residential, Commercial, and

Institutional Activities

One commenter recommended an

NWP to authorize the construction of

residential developments and associated

activities, including roads, stormwater

management facilities, and amenities for

recreation, such as golf courses,

swimming pools, playing fields, and

hiking and biking trails.

Similar comments were received

recommending that the Corps develop

an NWP for the construction of

industrial and office developments,

including retail and recreational

facilities. Another commenter

recommended an NWP for the

development and modification of

commercial real estate projects, with

different thresholds for site plan

development and the construction of

roads and utilities. A third commenter

recommended an NWP for commercial

and industrial activities. An NWP for

commercial development activities was

also recommended by the participants at

the 1997 Biennial National Regulatory

Program Conference workshop.

Comments were also received

recommending an NWP for the

construction of Federal, State, Tribal

and local government buildings and

institutional buildings, including, but

not limited to, schools, fire stations,

public works buildings, libraries,

hospitals and places of worship, and

their attendant features (septic systems,

parking lots, loading docks,

playgrounds, etc.).

From May 1, 1997, through December

31, 1997, NWP 26 was used to authorize

1,581 residential, commercial or

institutional developments, impacting

approximately 835 acres of wetlands

and 42,190 linear feet of stream bed.

Approximately 2,634 acres of

compensatory mitigation were provided

to offset the adverse environmental

effects of these projects.

The Corps is proposing an NWP to

authorize discharges of dredged or fill

material into non-tidal waters of the

United States, excluding wetlands

contiguous to tidal waters, for

residential, commercial, and

institutional development activities, and

associated infrastructure, including

utilities, roads, driveways, and

sidewalks. Infrastructure is integral to

residential, commercial, and

institutional development activities, and

should be included as a part of the

single and complete project for NWP

authorization, unless the road or utility

line is a component of a separate linear

project that will provide service to other

residential subdivisions, commercial

sites, or other areas.

This NWP is intended to authorize the

construction of residential

developments (particularly

subdivisions), commercial

developments, and institutional

developments with minimal impacts

that comply with the terms and

conditions of the permit. These types of

activities are currently authorized by

NWP 26. This NWP is not intended to

replace NWP 29, which authorizes the

construction of a single family residence

to be used only by the person who will

use the house as a personal residence.

Contractors and commercial developers

cannot use NWP 29 to construct a

residence which would subsequently be

offered for sale upon completion.

Furthermore, NWP 29 authorizes

discharges into all non-tidal waters of

the United States, whereas NWP A

authorizes discharges into non-tidal

waters of the United States, excluding

non-tidal wetlands contiguous to tidal

waters.

The Corps is also considering and

seeking comments on options to

establish acreage limits for this NWP.

One option would be to establish a

simple acreage limit, such as 3 acres, for

a single and complete project. Another

option would be to establish a sliding

scale or indexing of impact acreage

limits for this NWP, based on parcel

size, percentage of wetlands on the

parcel, or other criteria. An example of

such a sliding scale, based on parcel

size, is shown in the table below:

Parcel Size

Maximum

acreage

loss authorized

Less than 5 acres ..................... 1⁄4 acre.

5–10 acres ................................ 1⁄2 acre.

10–15 acres .............................. 1 acre.

15–100 acres ............................ 2 acres.

Greater than 100 acres ............ 3 acres.

Such a scheme helps ensure minimal

adverse impacts by authorizing smaller

impacts for smaller projects and

encouraging planning of developments

that reduces impacts to aquatic

resources. For example, under a sliding

scale, a 25-acre development could

result in the loss of only 2 acres of

waters of the United States, whereas

under a simple acreage limit the

permittee could impact up to 3 acres.

For NWP A, the Corps is soliciting

comments on the use of a sliding scale,

as well as acreage for parcel sizes and

impacts to waters of the United States

that would be used for the sliding scale.

The Corps is also seeking comments on

the benefits and drawbacks of such a

sliding scale. The Corps is also seeking

comments on the PCN threshold(s) that

would be used in conjunction with the

sliding scale of acreage limitation.

The Corps is proposing to require a

PCN for losses of greater than 1⁄3 acre of

non-tidal waters of the United States, or

for any project that would result in the

loss of any open waters, such as

perennial or intermittent stream beds or

lakes. The PCN will be subject to Corpsonly review where the project would

result in the loss of 1 acre or less of

waters of the United States, and to

review by the Corps and coordinating

agencies where the loss of waters of the

United States would exceed 1 acre. As

part of the PCN, applicants must submit

a written statement to the District

Engineer explaining why discharges in

waters of the United States must occur,

what measures were taken to avoid and

minimize impacts, and how the

permittee will provide compensatory

mitigation for those impacts. We have

conditioned this NWP to require

compensatory mitigation for projects

resulting in the loss of greater than 1⁄3

acre of waters of the United States. In

general, compensatory mitigation for

losses below 1 acre will be provided

most effectively through mitigation

banks and in lieu fee programs. The

compensatory mitigation proposal

required for the PCN does not have to

include detailed plans and

implementation schedules, but must

adequately describe the proposal so that
36052 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

the District Engineer can determine if

the proposed compensatory mitigation

is appropriate. If the project involves

streams or other open water, then

buffers, including upland areas adjacent

to the open waters, to these areas may

be required as a part of the

compensatory mitigation proposal. The

permittee may be required to submit

detailed compensatory mitigation plans

at a later date as a special condition of

the NWP authorization unless a

mitigation bank or in lieu fee program

is used to provide the compensatory

mitigation. For many of these types of

projects, the Corps believes that

compensatory mitigation is necessary to

offset adverse impacts to waters of the

United States.

The PCN requirement will allow

district engineers to assert discretionary

authority when they have determined

that the adverse effects of the proposed

work will be more than minimal. The

Corps believes that the issuance of this

NWP, along with its terms, limitations,

and general conditions, as well as any

regional or case-specific conditions, will

ensure that the authorized work will

have no more than minimal adverse

effects, both individually and

cumulatively, on the aquatic

environment on a watershed basis.

Projects authorized by this NWP must

be designed to avoid and minimize

impacts to waters of the United States

to the extent practicable on the project

site. In addition, the project design must

reduce adverse effects to water quality

by maintaining off-site upstream and

downstream baseflow conditions,

providing for stormwater management,

and normally maintaining a vegetated

buffer zone if the project occurs in the

vicinity of open water. Through regional

conditions, district engineers may

require additional watershed protection

techniques, if appropriate.

This NWP cannot be used to authorize

recreational facilities that are not an

integrated component of a residential,

commercial, or institutional

development. The development of a

master planned community that

includes residential, recreation, and

commercial activities may be authorized

by NWP B. The issuance of this NWP,

as with any NWP, provides for the use

of discretionary authority when

valuable or unique aquatic areas may be

affected by this activity.

B. Master Planned Development

Activities

One commenter proposed an NWP to

authorize discharges of dredged or fill

material to construct residential,

commercial, and industrial

developments that are planned or

designed for the long term protection of

aquatic resources and are owned and

managed by a single owner. Such

developments are designed for

residential, industrial, and/or

commercial uses, as well as recreational

uses. Master planned developments can

provide long term protection of valuable

aquatic resources by carefully

integrating the development into the

landscape and protecting the remaining

wetlands, open waters, and associated

buffers. These developments typically

set aside wetlands, riparian corridors,

and valuable upland habitats for

restoration, enhancement, or

preservation as part of the plan for the

area.

Increasingly, counties and local

communities across the country are

encouraging mixed-use development

and encouraging land use planning that

incorporates consideration of the

environment. Such initiatives provide

communities with an opportunity to

address a variety of concerns including

protecting sensitive natural areas,

consolidating infrastructure, and

maximizing the delivery of urban

services. Through local zoning and land

use programs, governments are working

to achieve these goals by encouraging

the development of environmentally

responsible, multiple-use communities.

The Corps is committed to ensuring that

the NWP program is consistent with

these goals and objectives and is

proposing this NWP to build on the

incentives currently provided by State

and local governments.

The Corps is proposing an NWP for

master planned development activities

that are designed, constructed, and

managed to conserve and enhance the

functions and values of waters of the

United States on the project site. The

Corps has designed NWP B to authorize

only those master planned development

activities that are designed, constructed,

and managed to integrate multiple uses

in a manner that conserves and

enhances the functions and values of

the water resources on the project site.

Specifically, activities authorized by

this permit often would incorporate

several land use categories, including

residential uses (e.g., single family

homes, apartments), commercial uses

(e.g., stores, hotels, office buildings),

industrial uses (e.g., water treatment

facilities), transportation uses (e.g., light

rail, roads), and open space uses (e.g.,

parks, trails).

This NWP authorizes discharges of

dredged or fill material into non-tidal

waters of the United States, excluding

non-tidal wetlands contiguous to tidal

waters, for the construction or

expansion of master planned

developments. The Corps is seeking

comments on the definition of master

planned development to use for this

NWP. A PCN will be required for all

activities authorized by this NWP. The

PCN must include a wetland assessment

that utilizes a functional assessment

method approved by the District

Engineer. Permittees will be required to

avoid and minimize impacts to waters

of the United States to the maximum

extent practicable and must include a

written statement detailing compliance

with this condition. The PCN must also

indicate on the site plans all aquatic

areas and adjacent buffer zones that

would be protected by conservation

easements or other measures. All

preserved wetland areas, streams,

mitigation areas, and buffer zones

adjacent to waters of the United States

on the site must be protected by a deed

restriction, conservation easement, or

other method of conservation and

preservation as a condition of the

permit. The District Engineer will

review the proposed master planned

development activities to ensure that

these features are designed to ensure

resource conservation and protection,

and to protect aquatic resources.

The Corps is also considering and

seeking comments on options to

establish acreage limits for this NWP.

One option would be to establish a

simple acreage limit, such as 10 acres,

for a single and complete project.

Another option would be to establish

acreage limits for master planned

developments that are determined by

indexing the upper limit of adverse

wetland impact to the size of the parcel,

to the amount of wetlands on the parcel,

or to a percentage of the jurisdictional

waters of the United States on a project

site. The following table is an example

of such a sliding scale, which indexes

the acreage limit to parcel size:

Parcel size

Maximum

acreage

loss authorized

100–200 acres .......................... 3 acres.

200–300 acres .......................... 5 acres.

300–500 acres .......................... 7 acres.

Greater than 500 acres ............ 10 acres.

In this example, master planned

developments constructed on parcels

less than 100 acres in size could not be

authorized by this NWP. Instead, NWP

A or another NWP may be used to

authorize the development, if

appropriate.

Examination of the above table shows

that, in general, smaller project sites

would be allowed a relatively higher

wetland impact limit, as a percentage of
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36053

parcel size, than would larger sites,

although the ratio does not decrease

proportionately as the parcel size

increases. (This same relationship

already occurs under the existing NWP

program, due to the Corps requirements

for on-site minimization and avoidance,

and the use of regional conditions). The

use of a sliding scale can be justified by

the limited flexibility that a smaller

project site affords an applicant,

whereas a larger project site affords an

applicant more options in developing

the property, and consequently, more

opportunities to minimize wetland

impacts. Such a method would differ

from most NWPs, in that most NWPs

have acreage limits that do not vary

with the size of the project site. An

indexed or varying scale for the

maximum threshold would encourage

the master planning of larger sites and

discourage fragmenting projects to get

more acres of impact to waters of the

United States.

Other methods of determining acreage

limits that we are considering would

allow the applicant to adversely impact

a certain percentage of the jurisdictional

waters of the United States on the

project site (e.g., 2% to 10% of the

jurisdictional areas), or an amount of

jurisdictional waters equal to a

percentage of the parcel size. For

example, at 1% of the total parcel size,

a project on a 200 acre parcel could

impact up to 2 acres of waters of the

United States, and at 2% of the parcel

size, a project on a 200 acre parcel could

impact up to 4 acres of waters of the

United States, etc.

These are just a few examples of an

indexed or varying maximum threshold

concept that the Corps is considering.

Any such concept, if adopted, would

still be subject to on-site avoidance and

minimization requirements, as well as

regional conditions and/or other

restrictions. Any such permits would

have to be carefully conditioned, and

the respective acreage limits (and

implied incentives) studied closely in

order for these proposals to lead to a net

reduction in the theoretical acreage of

impacted waters of the United States.

The Corps is seeking comments on the

practicability of such concepts, the

conditions that should be attached to

any such concepts, and the advantages

or disadvantages of implementing such

concepts.

District engineers will consider the

use of discretionary authority when

sensitive and/or unique areas or areas

with significant social or ecological

functions and values may be adversely

affected by the work. Although we have

proposed a high acreage limit for this

NWP, impacts must be avoided and

minimized to the maximum extent

practicable, with appropriate

compensatory mitigation to offset losses.

Moreover, the comprehensive approach

to the watershed area to be developed

and the fact that all remaining waters of

the United States and buffers will be

protected will benefit the overall aquatic

system. The compensatory mitigation

should, in most cases, be on site and be

incorporated into the development.

District engineers can impose special

conditions on a case-by-case basis to

ensure the impacts are minimal.

Regional conditions can also be used to

limit the use of this NWP in high value

aquatic ecosystems.

C. Stormwater Management Facilities

The Corps is proposing an NWP to

authorize the discharge of dredged or

fill material into non-Section 10 waters

of the United States, including

wetlands, for the construction and

maintenance of stormwater management

facilities. This permit may be used to

authorize the construction of new

stormwater management facilities

including: the excavation for stormwater

ponds/facilities, detention, and

retention basins; installation and

maintenance of water control structures,

outfall structures, and emergency

spillways; and the maintenance

excavation of existing stormwater

management ponds/facilities, detention,

and retention basins. This permit may

not be used to authorize any activities

for the construction of ponds for other

purposes.

The proposed acreage limit is 2 acres

for the construction of new stormwater

management facilities in order to

authorize the construction of

consolidated regional stormwater

management facilities. There is no

acreage limit proposed for the

maintenance of stormwater management

facilities because maintenance of these

facilities is necessary to ensure the

designed capacity is maintained for

water quality improvements and

reduction of downstream erosion and

flooding. Notification will be required

for the loss of greater than 1⁄3 acre of

waters of the United States, including

wetlands, the loss of greater than 500

linear feet of stream bed, or the

maintenance of existing stormwater

management facilities causing the loss

of greater than 1 acre of wetlands.

Between May 1, 1997, and December 31,

1997, NWP 26 was used to authorize the

construction or maintenance of 358

stormwater management facilities.

These projects resulted in the loss of

approximately 107 acres of wetlands,

and 33,170 linear feet of stream bed,

with 205 acres of compensatory

mitigation provided by permittees. In

most cases, the construction of

stormwater management facilities will

be included in project specific permits

(e.g., NWPs A, B, C, and D). There may

also be cases where the construction of

a stormwater management facility will

be required, not in association with the

construction of a residential,

commercial, or institutional

development, but for a watershed

management plan.

Placement of stormwater management

facilities in jurisdictional areas in

certain circumstances may provide more

environmentally sensitive planning and

benefits to the aquatic environment than

placing them in the uplands. By

incorporating best management

practices and watershed protection

techniques that provide for long-term

protection and enhancement of aquatic

resources, and requiring a PCN for

certain activities, the Corps believes that

impacts to the aquatic environment will

be minimal for this NWP. In response to

a PCN, district engineers can require

special conditions on a case-by-case

basis to ensure that the impacts to the

aquatic environment are minimal or

assert discretionary authority to require

an individual permit for the work.

Division engineers may place regional

conditions on this NWP. Such regional

conditions may utilize interagency

regional guidance that already exists, to

the extent that such guidance complies

with Corps regulations and allows the

development of enforceable regional

conditions.

D. Passive Recreational Facilities

One commenter recommended an

NWP to authorize the construction of

recreational facilities, such as

playgrounds, playing fields, swimming

pools and related structures, biking and

hiking trails, and golf courses. Another

commenter proposed an NWP to

authorize discharges associated with the

expansion or maintenance of ski areas.

NWP 26 has been used to construct

recreational facilities in headwaters and

isolated wetlands. From May 1, 1997,

through December 31, 1997, NWP 26

was used to authorize 57 recreational

facilities, but this data does not include

information on the specific types of

recreational facilities authorized by

NWP 26, or the acreage of impacts and

compensatory mitigation.

The Corps is proposing an NWP to

authorize discharges of dredged or fill

material into non-tidal waters of the

United States, excluding non-tidal

wetlands contiguous with tidal waters,

for the construction or expansion of

passive recreational facilities. For the

purposes of this NWP, passive
36054 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

recreational facilities are defined as lowimpact recreational facilities that are

constructed so that they do not

substantially change preconstruction

grades or deviate from natural landscape

contours for the following types of

activities: biking, hiking, camping,

running, and walking. Passive

recreational facilities may also include

the construction or expansion of golf

courses or ski areas, provided they are

designed to be integrated with existing

landscape features, do not require

substantial amounts of grading or filling,

and adverse effects to wetlands and

riparian areas are minimized to the

extent practicable. District engineers

may require vegetated buffers to

wetlands and streams and water quality

management techniques as measures to

ensure the impacts caused by these

recreational facilities are minimal.

Passive recreational facilities can be

either public or private and will not

have a substantial amount of buildings

and other impervious surfaces, such as

concrete or asphalt. This NWP also

authorizes the construction of support

facilities such as office buildings,

maintenance buildings, storage sheds,

and stables, but does not authorize the

construction of associated hotels or

restaurants. Some grading and filling

will be necessary to construct these

facilities, such as constructing a gravel

running trail or paving a narrow bike

path through a park. Timber decks and

walkways should be used where

possible to minimize adverse impacts to

waters of the United States.

Campgrounds authorized by this NWP

should have few impervious surfaces

such as pavement and should consist of

small cleared areas for tents and picnic

tables connected by dirt or gravel trails

or roads, with as little grading and

filling as possible.

The maximum acreage loss authorized

by this NWP is 1 acre of non-tidal

waters of the United States (wetlands

contiguous to tidal waters are also

excluded). The Corps is proposing to

require a PCN for losses of greater than

1⁄3 acre of waters of the United States

and/or greater than 500 linear feet of

stream bed. Recreational facilities

authorized by this NWP should be

designed to protect valuable aquatic and

upland habitats through avoidance and

minimization. Compensatory mitigation

will normally be required for losses of

greater than 1⁄3 acre of waters of the

United States. A permittee may provide

compensatory mitigation through

individual restoration, enhancement, or

creation of aquatic habitats, or through

the preservation of adjacent open or

green space, particularly those that

include wetland and riparian habitats.

Compensatory mitigation can also be

provided through in lieu fee programs,

land trusts, and mitigation banks.

This NWP does not authorize the

construction or expansion of

campgrounds for mobile homes, trailers,

or recreational vehicles. This NWP does

not authorize the construction of

playing fields, basketball or tennis

courts, race tracks, stadiums, or arenas.

Any recreational facility not authorized

by this NWP may be authorized by

another NWP, a regional general permit,

or individual permit. Playing fields,

playgrounds, and other golf courses may

be authorized by NWP A if they are an

integral part of a residential subdivision.

Commercial recreational facilities may

be authorized by NWP A. Playgrounds,

ball fields, golf courses, parks, and trails

may be authorized by NWP B if these

facilities are part of a master planned

development. The construction of hotels

and conference centers that are

commonly associated with recreational

facilities may be authorized by NWP A.

By restricting this NWP to passive

recreational facilities, we believe that

the impacts to the aquatic environment

will be minimal. In response to a PCN,

district engineers can require special

conditions on a case-by-case basis to

ensure that the impacts to the aquatic

environment are minimal or assert

discretionary authority to require an

individual permit for the work.

E. Mining Activities

During the 1996 NWP reissuance

process, the Corps proposed an NWP for

‘‘Mining Operations’’. Based on the

comments and information gathered

during the process, the Corps decided to

encourage the development of regional

general permits, rather than to develop

national limits to meet the minimal

effects requirement. As a part of the

initiative to replace NWP 26, the

aggregate industry (i.e., sand, gravel,

crushed and broken stone) and hard

rock metal/mineral mining industry

(i.e., extraction of metalliferous ores

from subsurface locations) provided

information and proposed draft NWPs

that they believed would meet the

minimal impact requirement.

The Corps has evaluated that input

and developed a new proposed NWP for

mining activity discharges that would

have minimal impact (as conditioned)

in certain aquatic ecosystems. We have

organized the NWP around specific

activities, within specific aquatic

ecosystems. We have also provided

separate sections for aggregate activities

and for hard rock/mineral mining

activities. This recognizes that while

some of the discharges being regulated

by the Corps are similar for both

industries, there are considerable

differences in the impacts associated

with the subsequent processing of the

materials being extracted.

The terms and conditions of this NWP

as well as the typical State and local

permitting requirements mining

operations are subject to, serve to

minimize potential resource use

conflicts and make it likely that only

those activities which have adequately

addressed the issue of such potential

conflicts would be in a position to

consider using this NWP. Both

industries are generally speaking highly

regulated, often subject to State and

local land use planning requirements

and individual permits. The NWP does

not obviate the need to obtain other

authorizations required by law, [33 CFR

330.4(b)]. For example, hard rock/

mineral mining operations often require

National Pollution Discharge

Elimination System (NPDES) permits for

discharges associated with ore

processing techniques, and those

NPDES permits must be obtained.

This NWP is expected to be used

primarily for commercial mining

activities, although smaller, noncommercial operations may benefit from

this NWP. These activities provide both

public and private benefits by providing

materials for construction,

manufacturing, and other industries.

The Corps is proposing to authorize

discharges of dredged or fill material

associated with specific activities

undertaken during the mining of

aggregate materials (i.e., sand, gravel,

crushed and broken stone) and hard

rock/mineral mining at new and

existing mining sites. Mining activities

authorized by this NWP include:

discharges from filling, excavation, and

dredging; exploration; processing;

construction of berms, haul roads, dikes,

and road crossings; construction of

settling ponds and settling basins;

ditching and trenching; mechanized

landclearing; storm water and surface

water management; stream diversion or

relocation; stockpiling; sediment and

erosion controls; grading; and other

activities involved in mining and mined

land reclamation.

The Corps is proposing two options

for the acreage limit for a single and

complete mining project in paragraph

(j). We are requesting comments on

whether the acreage limit for a single

and complete project should be 3 acres

or 2 acres. The acreage limit for a single

and complete project is a combination

of the acreage limit for the specific

mining activities and the acreage limit

for support activities.

This NWP authorizes only those

Section 404 discharges associated with
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36055

mining activities that have been

considered to have minimal impacts, as

conditioned. For example, any NWP

notification for in-stream mining

activities must include a discussion of

necessary measures to prevent increases

in stream gradient and water velocities

to prevent adverse effects (e.g., head

cutting, bank erosion) on upstream and

downstream channel conditions, as well

as measures to minimize adverse effects

to downstream turbidity. We are

particularly interested in comments

concerning conditions that are

appropriate for mining activities in the

aquatic ecosystems we have identified.

While thresholds and limits have

been developed for each type of aquatic

ecosystem, during the notification and

evaluation process the Corps may find

that further conditioning of the

nationwide permit for a specific

activity, including relocating or further

reduction of the impacts of the activity

and/or additional compensatory

mitigation, is necessary or that the

project should be evaluated under the

Corps individual permitting procedures.

Specifically, if the District Engineer

determines that a proposed activity will

have more than minimal adverse

environmental effects, the District

Engineer will require an individual

permit. This would result in a project

specific alternatives analysis, including

off-site alternatives.

This NWP requires that the permittee

submit a reclamation plan with the

notification. District engineers have the

flexibility to assert discretionary

authority and not authorize further

mining activities under this NWP if

there is mined land reclamation

required for previously authorized

mining activities that has not been

completed. Subsequently, upon

completion of the required mined land

reclamation, the District Engineer may

authorize further mining activities

under this NWP.

This NWP sets forth criteria that,

combined with the discretion of the

District Engineer, and the regional

conditioning that can take place at the

district and State levels, help ensure

that only minimal adverse

environmental effects will result on a

cumulative basis. With required

compensatory mitigation for losses of

wetlands, environmental gains in

addition to adequate environmental

protections can be anticipated as an end

result of use of this NWP. It is

reasonable to assume that the potential

time and cost savings associated with

use of this NWP will encourage

applicants to design their project within

the scope of the NWP rather than

request an individual permit, which

could potentially have a greater adverse

impact. In addition, use of this NWP

will enhance regulatory oversight of

projects potentially encompassing much

greater impacts.

Acreage limitations in this NWP

restrict its applicability. Mining projects

are of varying sizes, sometimes covering

hundreds of acres, which include areas

under Corps jurisdiction. Mandatory

compensatory wetland mitigation

ensures that losses of wetland functions

are minimal on a cumulative basis.

Furthermore, as a result of the

notification requirements and the

opportunity for regional conditioning,

even small discharges can be ineligible

for this NWP if the unique

environmental function or ecological

setting is determined to require further

protection.

Mining companies have considerable

experience in land reclamation,

including the creation and restoration of

wetland and riparian areas. Regulatory

confusion surrounding wetlands created

intentionally or unintentionally at

mining operations serve as further

testament to the ability to create

wetlands as a part of the mining and

reclamation process. We are requesting

comments concerning the following

position as a part of the NWP notice:

‘‘Waterfilled depressions and pits,

ponds, etc., created in any area not a

‘‘water of the U.S.’’, as a result of

mining, processing, and reclamation

activities, shall not be considered

‘‘waters of the U.S.’’ until one of the

following occurs:

(1) All construction, mining, or

excavation activities, processing

activities and reclamation activities

have ceased and the affected site has

been fully reclaimed pursuant to an

approved plan of reclamation; or

(2) All construction, mining, or

excavation activities, processing

activities and reclamation activities

have ceased for a period of fifteen (15)

consecutive years or the property is no

longer zoned for mineral extraction, the

same or successive operators are not

actively mining on contiguous

properties, or reclamation bonding, if

required, is no longer in place; and the

resulting body of water and adjacent

wetlands meet the definition of ‘‘waters

of the U.S.’’ (33 CFR 328.3 (a)).’’

This clarification would resolve a

long-standing jurisdictional debate that

has consumed much time and effort on

the part of the regulated community and

regulators alike, without contributing

significantly to environmental

protection. Asserting jurisdiction in

such circumstances provides an

incentive for operators to go out of their

way to make sure that wetlands do not

occur on their properties, thus depriving

for the duration of normal activities,

whatever benefits would have accrued

to the area as a result of the temporary

or permanent creation of wetlands.

Similarly, such assertions lessen the

likelihood of non-mitigation wetland

creation for fear of regulatory problems.

F. Reshaping Existing Drainage Ditches

One commenter recommended an

NWP to authorize the maintenance of

ditches. The maintenance of drainage

ditches constructed in waters of the

United States does not require a Section

404 permit (i.e., the maintenance is

exempt), provided the drainage ditch is

returned to its original dimensions and

configuration (see 33 CFR 323.4(a)(3)).

However, the modification or new

construction of drainage ditches in

waters of the United States requires a

Section 404 permit. NWP 26 has been

used in the past to authorize this

activity in headwaters and isolated

wetlands.

The Corps is proposing an NWP to

authorize discharges of dredged or fill

material into non-Section 10 waters of

the United States for reshaping existing

drainage ditches by altering the crosssection of the ditch to benefit the

aquatic environment. Since

maintenance of drainage ditches to their

original dimensions and configurations

is exempt from Section 404 permit

requirements, the purpose of this NWP

is to encourage reshaping of ditches in

a manner that provides benefits to the

aquatic environment. The original

dimensions and configuration of the

ditch may not provide water quality

benefits that could be achieved with a

different configuration. For example, the

banks of ditches can be graded at a

gentler slope to reduce erosion and

decrease sediment transport down the

ditch by trapping sediments. Shallower

slopes also increase the amount of

vegetation along the bank of the ditch,

which can decrease erosion, increase

nutrient and pollutant uptake by plants,

and increase the amount of habitat for

wildlife. This NWP is limited to

reshaping currently serviceable drainage

ditches constructed in waters of the

United States, provided the activity

does not change the location of the

drainage ditch. The centerline of the

reshaped drainage ditch must be in

essentially the same location as the

centerline of the existing ditch. This

NWP does not authorize reconstruction

of drainage ditches that have become

ineffective through abandonment or lack

of regular maintenance. This NWP may

not be used to relocate drainage ditches

or to modify drainage ditches to

increase the area drained by the ditch
36056 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

(e.g., by widening or deepening the

ditch beyond its original design

dimensions or configuration) or to

construct new drainage ditches if the

previous drainage ditches have been

neglected long enough to require

reconstruction. This NWP does not

authorize channelization or relocation

of streams to improve capacity of the

streams to convey water. The

construction of new drainage ditches or

the reconstruction of drainage ditches

may be authorized by an individual

permit, another NWP, or a regional

general permit.

This NWP does not authorize the

maintenance or reshaping of drainage

ditches constructed in navigable waters

of the United States (wetlands that are

contiguous to Section 10 waters are also

excluded). A Section 10 permit is

required for the maintenance or

modification of drainage ditches

constructed in navigable waters of the

United States.

The Corps is proposing to require

notification for reshaping drainage

ditches where the material excavated

during reconfiguration is sidecast into

waters of the United States. If the ditch

is being maintained to its original

dimensions and configuration and the

excavated material is sidecast into

waters of the United States, no

notification is necessary because this

activity is exempt and a Section 404

permit is not required. Compensatory

mitigation for the work authorized by

this NWP should not be required if the

ditch is reshaped to improve water

quality. This activity can be considered

to be self-mitigating, in that reshaping

the ditch will normally result in

improvements in water quality and any

wetland vegetation that inhabited the

ditch prior to the work will recolonize

the ditch. In addition, if the project

proponent did the work in such a

manner that qualified for the exemption,

compensatory mitigation would not be

required since the activity is exempt.

Requiring compensatory mitigation for

modifying the cross-sectional

configuration of the ditch may

encourage maintenance to the original

dimensions and configuration and

discourage reshaping the ditch to a more

environmentally beneficial shape.

Division engineers can regionally

condition this NWP to exclude certain

waterbodies or require notification

when waters or unique areas that

provide significant social or ecological

functions and values may be adversely

affected by the work. Activities

authorized by this NWP will have

minimal adverse effect on the aquatic

environment, since it is limited to

existing drainage ditches and activities

that improve water quality. District

engineers can assert discretionary

authority when very sensitive or unique

areas may be adversely affected by these

activities. It is unlikely that this NWP

will result in a substantial increase in

the Corps workload. The PCN

requirement allows Corps districts, on a

case-by-case basis, to add appropriate

special conditions to ensure that the

adverse effects are minimal. The District

Engineer can also assert discretionary

authority to require an individual

permit for any activity that may have

more than minimal adverse effects.

Discussion of Proposed Modifications to

Existing Nationwide Permits

In response to comments received in

reply to the December 13, 1996, Federal

Register notice, the Corps is proposing

to modify NWPs 3, 7, 12, 14, 27, and 40.

These modifications will increase the

number of activities authorized by these

NWPs. The following is a discussion of

our reasons for modifying these NWPs.

3. Maintenance

The Corps has proposed several

modifications to this permit, as outlined

in paragraphs (ii) and (iii) of the

proposed permit. The Corps experience

with NWP 3 to date has been very good;

navigable waters have not been

obstructed and adverse impacts to the

aquatic environment are very minor.

Furthermore, in many cases, use of

NWP 3 actually enhances the aquatic

environment. For example, replacing a

damaged seawall often eliminates

chronic turbidity caused by erosion. In

paragraph (i) of the proposed

modification, the Corps is retaining all

of the original terms and conditions of

this NWP. The Corps is proposing to

add two related activities to this NWP:

removal of accumulated sediments in

the vicinity of existing structures and

restoration of upland areas damaged by

a storm, flood, or other discrete event.

Paragraph (ii) of the proposed

modification will authorize the removal

of accumulated sediments from stream

beds and other open water areas in the

vicinity of existing structures such as

bridges and culverted road crossings.

This modification also authorizes the

placement of rip rap to protect the

structure from scour. A new NWP to

authorize this work was recommended

as a result of a workshop at the 1997

Biennial National Regulatory Program

Conference. From May 1, 1997, through

December 31, 1997, NWP 26 was used

126 times to authorize the maintenance

and clean-out of stream beds. The Corps

believes that it is more appropriate to

modify NWP 3 than to develop a new

NWP for this activity.

The accumulation of sediments in the

vicinity of structures is usually due to

the structure’s effects on sediment

transport and flow patterns in the

waterbody. These sediment deposits

affect the ability of the structure to

function effectively and may increase

flooding in the area. In addition, these

deposits can create barriers to the

passage of fish and other aquatic

organisms. Periodic removal of these

aggraded materials is required to restore

stream flow conditions and protect the

integrity of the structure for the safety

of the public.

Paragraph (ii) of the proposed

modification of this NWP will be used

more often than NWP 26 to authorize

removal of sediments from the vicinity

of structures because it is not limited to

headwater streams where the median

flow on an annual basis is less than 5

cubic feet per second. This activity will

be authorized in all waters of the United

States. Paragraph (ii) limits the amount

of excavated material to the minimum

necessary to restore the waterbody to its

original dimensions (e.g., depth and

width), for a maximum distance of 200

feet upstream and downstream from the

structure. The amount of rip rap

discharged for scour protection must be

the minimum necessary to protect the

structure. Excavated sediments must be

deposited in an upland area, unless

otherwise authorized by the District

Engineer, and contained to prevent their

reentry into the waterway. We are

proposing to require a PCN for all work

performed under this paragraph.

We believe that removal of sediments

from the vicinity of these structures will

have minimal adverse effects on the

aquatic environment provided the

amount of material removed is the

minimum necessary to restore the

stream to preconstruction dimensions

(e.g., width and depth). Such work may

also provide environmental benefits by

restoring flow regimes and removing

barriers to the movement of aquatic

organisms. Flooding in the vicinity of

the structure may also be reduced. The

placement of rip rap for scour protection

is also likely to result in only minimal

adverse effects, because only small

amounts of rip rap are typically needed

to protect these structures. In those

areas inhabited by submerged aquatic

vegetation or other important aquatic

organisms, the PCN requirement of this

NWP will allow the District Engineer

the opportunity to assert discretionary

authority over the activity. In addition,

regional or case-by-case special

conditions such as time-of-year

restrictions can be placed on specific

activities or geographic areas.
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36057

This NWP will not authorize stream

channelization or stream relocation

projects. Stream channelization or

relocation may be authorized by an

individual permit, regional general

permit, or other NWP. Removal of

sediments from the vicinity of an

existing structure in tidal waters may be

authorized by an individual permit,

regional general permit, or other NWP,

such as NWP 19.

The PCN requirement will allow the

District Engineer to ensure that the

amount of sediment removed is the

minimum necessary and consider the

use of discretionary authority when

important ecological functions are

present or sensitive/unique areas may

be adversely affected. Districts may

impose regional or case-by-case special

conditions to decrease the maximum

distance to less than 200 linear feet

upstream or downstream of the

structure. Compensatory mitigation will

typically not be required for work

authorized by this NWP, since the work

usually involves removal of recently

aggraded sediments and may provide

benefits for aquatic organisms by

restoring flow regimes. Although a few

streams will have aggraded sediments

inhabited by vegetation, removal of

these vegetated deposits will have

minimal adverse effects on the stream.

In circumstances where sediment

deposits have developed extensive plant

communities, such as in a braided

stream, district engineers may require

compensatory mitigation or assert

discretionary authority to require an

individual permit.

Paragraph (iii) of the proposed

modification of NWP 3 will authorize

discharges of dredged or fill material for

the purpose of restoring uplands

adjacent to waters of the United States

where those uplands have been

damaged by discrete events such as

floods or storms. The purpose of this

modification is to allow the

reconstruction of shorelines, river

banks, and other lands adjacent to open

water areas to the extent and contours

that existed prior to the damaging event.

For example, the high banks of a river

may be subjected to damaging flood

flows, with the result that a substantial

area of the bank becomes undercut and

collapses into the river. The use of this

permit would allow the discharge of fill

material into the edge of the river in the

quantities needed to rebuild the river

bank. The installation of any bank

stabilization measures needed to protect

the restored area could be authorized

under a separate permit, such as NWP

13. In order to qualify for this permit,

the damage or loss of upland would

have to be traceable to a specific event

that has occurred within the 12 months

prior to the District Engineer receiving

notification of the proposed work. This

permit may not be used to reclaim lands

that have been lost due to long-term

erosion processes, historic damage more

than 12 months old, or to restore lands

where no substantial evidence of

previous land contours can be

established. The determination of

previous land contours, and the extent

of restoration allowed under this permit,

is the responsibility of the District

Engineer. Proposals to reconfigure and

armor the rebuilt bank that the District

Engineer has determined to not qualify

for this permit may be processed as an

individual permit or general permit.

The 12 month notification deadline

has been proposed to allow the Corps to

establish that the damage has occurred

recently, and to verify that the purpose

of the permit application is to repair any

immediate damage, and not to reclaim

lands that may have existed in the past.

For example, a river may slowly change

course over a period of many years, with

a corresponding evolution of the

landscape. The meandering of a river is

a natural process, and this NWP would

not be applicable if a party wished to

relocate the channel of the river to

reconfigure a piece of property into a

more usable form, or to relocate the

channel to a historic configuration.

Likewise, an old land survey of a

property adjacent to a lake may not be

presented as evidence of justification for

use of this NWP, where the land in

question was located in what is now the

open waters of the lake, and the land

was lost to the lake several years ago.

The shorelines of lakes may change over

time, and the 12 month limit of this

proposed permit is needed to ensure

that areas of open water are not

reclaimed as dry land in a piecemeal

fashion based on historic surveys. The

12 month time period also seems

reasonable given that the affected

parties would be interested in quickly

repairing any damage that has occurred

to their property. This permit does not

require that the restoration be

completed within 12 months; it only

requires that the Corps be notified

within 12 months of the date of the

damage. Any work authorized by this

permit would have to commence, or be

under contract to commence, within 2

years of the date of the damage.

The need for this NWP is justified by

the desire of landowners to quickly

repair property damage, or to ensure

that they will be able to restore the land

when resources become available. A

landowner who has suddenly been

deprived of a valuable piece of property

due to the effects of a flood or storm

may sustain a substantial economic loss

if he or she were unable to restore the

damaged land quickly. The availability

of this NWP would in many cases allow

the landowner to repair the damage and

minimize economic losses, without

having to apply for an individual

permit, which would require more time

to process. Notification requirements

and evidentiary conditions of this

permit should ensure that the work is

limited to that needed to restore recent

damage, and should prevent the

reclamation of historic lands.

This proposed modification to NWP 3

would also authorize minor dredging to

remove obstructions or sediments

deposited by the flood or storm.

Dredging under paragraph (iii) of this

NWP would be limited to a total of 50

cubic yards, and would be restricted to

the extent needed to remove the

obstruction. Any dredging requirements

in excess of 50 cubic yards may be

authorized by another general permit or

an individual permit. The dredging

provision of this NWP may not be used

solely to provide a source of fill material

needed for the restoration of uplands,

nor may it be used to artificially deepen

a waterbody, channelize a stream, or be

used in place of a maintenance dredging

operation.

It is anticipated that this NWP would

only result in minimal impacts to the

aquatic environment, since the areas

that would be rebuilt were not waters of

the United States prior to the damaging

event, and the restoration of such lands

should not result in a loss of aquatic

habitat. Indeed, the actual restoration of

the upland itself does not require a

permit, because it is exempt under

Section 404(f). The determination of the

extent of waters of the United States

should consider the contours of the

affected upland area prior to the

damaging event, and should not be

based upon the current damaged

condition of the property (i.e., the

damaged area does not immediately

become a water of the United States). As

explained above, the applicant must

provide evidence of the previous

contours of the damaged land in order

to qualify for this permit.

No upper acreage limit has been

proposed for this activity, and

mitigation will typically not be required

for the work, since the restoration of

uplands should not result in a loss of

waters of the United States. While there

is no upper limit, it is anticipated that

most permittees would seek to restore

small areas, such as the frontage of

individual lots adjacent to streams or

lakes in developed areas. The

notification requirement would allow

the Corps to alert other Federal and
36058 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

State agencies, as necessary, such as

State flood plain regulatory agencies. In

addition, The Corps believes that the

potential impacts from the removal of

accumulated sediments near existing

structures will be minimal. However, if

these areas are inhabited by submerged

aquatic vegetation or other important

aquatic organisms, the PCN requirement

of this NWP will allow the District

Engineer the opportunity to assert

discretionary authority over the activity.

In addition, regional or case-by-case

special conditions such as time-of-year

restrictions can be placed on specific

activities or geographic areas.

The Corps would only authorize those

upland restoration projects that would

be constructed in such a way as to result

in no more than minimal impacts to the

aquatic environment. Furthermore, this

NWP would restrict the upland

restoration to the extent that existed

prior to the damage; however, the Corps

would not require the applicant to make

such full upland restoration. For

example, should the applicant propose

to restore only a part of the damaged

upland, or to restore part of the

damaged area in a way more beneficial

to the aquatic environment, such as a

wetland restoration, the Corps will

usually agree to the plan. Any proposals

to restore only a part of the damaged

upland must originate with the

applicant, and will not be required by

the Corps.

The restoration of wetland areas and

riparian zones damaged by storms may

not be authorized with this NWP,

however, these activities may be

authorized by NWP 27. With regard to

the use of this proposed permit with

other NWPs (i.e., ‘‘stacking’’), the Corps

would not allow the use of this permit

in combination with NWP 18 or NWP

19. The Corps is soliciting comments on

the requirements and methods needed

to demonstrate the prior extent of the

uplands to be restored, the practicability

of the proposed 50 cubic yard dredging

limit, the 12 month time limit for

notification to the Corps, the 2 year time

limit established for the work to

commence.

7. Outfall Structures and Maintenance

A commenter recommended

modification of NWP 35 to authorize

maintenance dredging activities at

utility facilities for three types of areas:

barge canals and slips, dam headworks

at hydropower plants, and intake and

outfall structures and canals. Most of

these activities require individual

permits because they occur in navigable

waters of the United States or below

headwater streams. Currently, NWP 35

authorizes maintenance dredging of

marina basins, boat slips, and access

channels to marinas and boat slips.

The removal of debris from the

headworks of hydroelectric dams does

not require a Section 10 permit because

it does not constitute work in navigable

waters of the United States. A Section

404 permit is not required for this

activity as long as there is no associated

discharge of dredged or fill material. In

these situations, most debris is removed

with equipment or specially designed

vessels that do not cause discharges of

dredged or fill material into waters of

the United States. Therefore, we are not

proposing an NWP for this activity.

Another commenter requested that

the terms and limitations of NWP 31 be

expanded to include maintenance of

intakes to water supply facilities.

The Corps is proposing to modify

NWP 7 to authorize the removal of

accumulated sediments from outfalls,

intakes, and associated canals. All of the

original terms and limitations of NWP 7

are retained in the proposed

modification. Outfalls, intakes, and

associated canals accumulate sediment

and require periodic excavation or

maintenance dredging to restore flow

capacities to the facility. Most of the

dredging is required in the vicinity of

intake structures and their canals

because circulation patterns result in

the deposition of sediments in these

areas. These sediments must be

removed to ensure that the facility has

an adequate supply of water for its

operations. Water discharged from

outfall structures usually has little or no

sediment load; maintenance dredging is

not often required in these areas. In

situations where an utility company’s

intake or outfall canal is used by barges

to travel to the utility facility, the

proposed modification will allow

continued access by those barges

because the removal of accumulated

sediments will return the intake or

outfall canal to its designed dimensions,

and restore its navigable capacity.

Currently, utility companies must

obtain individual permits for this work,

since the amount of dredged material

usually exceeds the limitation of 25

cubic yards specified in NWP 19. This

NWP authorizes the removal of

accumulated sediment from intake and

outfall structures in small

impoundments, such as water treatment

facilities, irrigation ponds, and farm

ponds. This NWP will not authorize the

construction of new canals or the

removal of sediments from the

headworks of large dams, flood control

facilities, or large reservoirs. These

types of work may be authorized by

individual permits, regional general

permits, or other NWPs, such as NWPs

19 or 31.

A PCN will be required so that Corps

districts can review these activities on a

case-by-case basis to ensure that the

adverse effects are minimal. The amount

of sediment dredged or excavated must

be the minimum necessary to restore the

facility to original design capacities and

configurations.

The Corps believes that the potential

impacts from the removal of

accumulated sediments from intake and

outfall structures and associated canals

will be minimal. If the canals are

inhabited by submerged aquatic

vegetation or other important aquatic

organisms, the PCN requirement of this

NWP will allow district engineers the

opportunity to assert discretionary

authority. In addition, regional or caseby-case special conditions such as timeof-year restrictions can be placed on

specific activities or geographic areas.

12. Utility Activities

In response to the December 13, 1996,

Federal Register notice, the Corps

received several comments requesting

development of NWPs for activities

associated with utility lines, such as the

construction of electric and pumping

substations, foundations for electric

power line towers, and permanent

access roads. NWP 26 has been used to

authorize these activities in the past.

From May 1, 1997, through December

31, 1997, there were 34 utility-related

activities authorized by NWP 26. Since

the commenters were proposing

activities directly related to utility lines,

we believe it is more appropriate to

modify NWP 12 to authorize these

activities, instead of developing separate

NWPs for each type of activity.

One commenter proposed an NWP

that would authorize the installation

and maintenance of overhead electric

transmission lines and associated

facilities, such as substations and

permanent access roads. NWPs 26 and

33 have been used to construct access

roads associated with utility lines, but

NWP 33 authorizes only temporary

access roads. Permanent access roads

are necessary for routine and emergency

maintenance of overhead electric

transmission lines. NWP 26 has also

been used to authorize the construction

of foundations for transmission towers

and poles. Another commenter has used

NWP 26 to build electric substations

and construct access roads for electric

power transmission lines, and

recommended either issuance of a new

NWP or modification of NWP 12 to

authorize these activities. The

commenter stated that NWPs 14 and 33

typically cannot be used to authorize
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36059

the construction of permanent access

roads for utility lines, because of the

acreage limitations of NWP 14 and the

fact that NWP 33 authorizes temporary,

not permanent, access roads.

A commenter recommended

including electric utility activities in the

NWP program, similar to the utility

activities presently authorized by the

Florida Department of Environmental

Protection and regional water

management districts in the State of

Florida.

Currently, NWP 12 authorizes only

utility line backfill and bedding

activities. All of the original terms and

limitations of NWP 12 have been

retained, with some clarification, in the

proposed modification. The proposed

modification of NWP 12 will include

the following activities commonly

associated with utility lines: electric and

pumping substations, foundations for

electric utility line towers, and

permanent access roads. Modifying

NWP 12 to expand coverage of the

installation and maintenance of utility

lines and attendant features is a more

effective means of authorizing these

activities than developing several new

NWPs. It will streamline the

authorization process for utility line

activities that have minimal adverse

effects on the environment.

Paragraph (i) of the proposed

modification authorizes the same

activities as the NWP 12 published in

the December 13, 1996, Federal Register

notice. In the proposed modification, we

are including clarification of the

circumstances where a pipeline carrying

gaseous or liquid substances over

navigable waters of the United States

requires a permit from the United States

Coast Guard pursuant to Section 9 of the

Rivers and Harbors Act. We are also

proposing to include language in this

paragraph that states that repair of

utility lines is authorized by this NWP.

The impacts due to repair are often less

than those of installation, because in

most cases only certain sections of a

utility line require repair, and these

areas are restored upon completion of

the work.

Paragraph (ii) authorizes discharges

associated with the construction or

expansion of electric or pumping

substations, provided the discharge does

not cause the loss of more than 1 acre

of non-Section 10 waters of the United

States (wetlands that are contiguous to

Section 10 waters are also excluded).

The Corps is proposing to require a PCN

if the construction or expansion of the

substation will cause the loss of more

than 1⁄3 acre of waters of the United

States.

Paragraph (iii) authorizes discharges

for foundations of utility line towers,

poles, and anchors. To minimize

adverse effects, separate foundations for

each tower leg will be required, when

practicable, and the foundations must

be the minimum size necessary. In most

cases, the construction of foundations

for overhead utility lines will have

minimal adverse effects on the aquatic

environment because these utility lines

are constructed in a cleared right-of-way

(which will remain as a wetland) and

the foundations will permanently affect

only a small proportion of the cleared

wetland area. In the right-of-way, most

of the vegetation will be allowed to

grow back as either emergent or scrubshrub wetland.

Paragraph (iv) would authorize

discharges for the construction and

maintenance of permanent access roads,

which would be used to maintain the

utility line, especially in emergency

situations. Access roads used only for

construction can be authorized by NWP

33, but restoration of waters of the

United States is required after

completion of the work. We expect that

most access roads used for maintenance

will be the same as the access roads

used for construction. Access roads

must be the minimum width necessary,

be designed to minimize the amount of

waters of the United States adversely

affected by the roads, and cannot restrict

surface and subsurface flows. We are

proposing a maximum acreage loss

limitation of 1 acre of waters of the

United States. Access roads must follow

preconstruction contours and elevations

to the extent practicable. The Corps is

proposing to require notification where

more than 500 linear feet of access road

is constructed above preconstruction

grades in waters of the United States.

Corduroy or geotextile/gravel access

roads constructed at grade are likely to

be the most common access roads

constructed. We anticipate that most of

these access roads would be 10 to 15

feet wide. We believe that permanent

access roads are necessary because they

allow efficient emergency maintenance

of utility lines. Temporary access roads

become overgrown with vegetation,

delaying access for emergency repairs.

Such delays endanger citizens serviced

by the utility line. With proper

construction techniques, access roads

can be constructed and maintained with

minimal adverse effects on the aquatic

environment. Surface water flows will

not be substantially affected by access

roads constructed at-grade. Some

components of access roads will have to

be constructed above grade, particularly

to construct culverted stream crossings.

Such crossings will have minimal

adverse effects, provided the culverts

are adequately sized.

In the proposed modification of NWP

12, we are including the definition of

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

defined in other NWPs. The installation

of subaqueous utility lines in waters of

the United States should not be

considered as resulting in a loss of

waters of the United States if the area

impacted by the installation of the

utility line is the minimum necessary

and preconstruction contours and

elevations are restored after

construction. The use of timber mats in

utility line construction results in

temporary impacts to waters of the

United States, and typically reduce

impacts to wetlands caused by heavy

equipment. Therefore, the use of timber

mats should not be included as a source

of permanent loss when determining

impacts to waters of the United States,

provided they are removed upon

completion of construction. Once the

timber mats are removed, wetland

conditions typically return within a

short time period.

We are also including language in the

proposed modification of NWP 12 to

clarify that the installation of utility

lines in navigable waters of the United

States without any associated discharge

of dredged or fill material (i.e., Section

10 of the Rivers and Harbors Act is the

only applicable law) is authorized by

this NWP. All of the original

notification provisions of NWP 12 will

remain the same, with additional

notification provisions for discharges for

electric or pumping substations that

result in the loss of more than 1⁄3 acre

of non-tidal waters of the United States

and for permanent access roads

constructed in waters of the United

States above preconstruction grades for

a distance of more than 500 feet. We are

revising item ‘‘c’’ in the notification

section to clarify that the exclusion of

overhead utility lines that are

constructed for a distance of more than

500 linear feet in waters of the United

States from the notification requirement.

This NWP does not authorize the

construction of new power plants, water

treatment plants, or reservoirs.

Discharges in Section 10 waters for the

construction of electric or pumping

substations or access roads is not

authorized. Pipelines used to transport

gases and liquids over navigable waters

of the United States require a Section 9

permit from the United States Coast

Guard and are not authorized by this

NWP. Division and district engineers

will still be allowed the use of

discretionary authority when very
36060 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

sensitive/unique areas may be adversely

affected by these activities.

14. Linear Transportation Crossings

One commenter recommended an

NWP to authorize the construction,

extension, and expansion of railroad

tracks, including railroad beds. NWP 26

has been often used to authorize this

type of work. Another commenter

recommended an NWP to authorize

minor road improvements and

maintenance projects and the placement

of drainage structures in headwater

streams.

The Corps is proposing to modify

NWP 14 to authorize discharges of

dredged and fill material into non-tidal

waters of the United States, excluding

non-tidal wetlands contiguous to tidal

waters, for the construction, expansion,

and improvement of public linear

transportation crossings for public

projects such as roads, railroads and

runways. For private linear

transportation crossings and for public

linear transportation crossings in tidal

waters or non-tidal wetlands contiguous

to tidal waters, such as a controlledaccess road to an industrial site, or the

construction of a private road leading to

a residence, the original terms and

limitations of NWP 14 will be retained.

The Corps is proposing two options

for the acreage limit for public linear

transportation crossings in paragraph

(a). We are requesting comments on

whether the acreage limit for public

linear transportation crossing should be

1 acre or 2 acres. For public linear

transportation crossings, notification

will be required for discharges in

special aquatic sites, including

wetlands, or for all discharges that

result in the loss of greater than 1⁄3 acre

of waters of the United States. For

private road crossings, the discharge

cannot result in the loss of more than 1⁄3

acre of waters of the United States, or

extend for a distance of more than 200

feet in waters of the United States.

Notification will be required for all

discharges in special aquatic sites,

including wetlands, for private road

crossings. Between May 1, 1997, and

December 31, 1997, NWP 26 was used

to authorize 953 transportation projects.

These transportation projects resulted in

the loss of approximately 278 acres of

wetlands, and 56,442 linear feet of

stream bed, with 1,036 acres of

compensatory mitigation provided by

permittees.

Features of the proposed work that are

integral to the linear transportation

project, such as interchanges,

stormwater detention basins, rail spurs

or water quality enhancement measures,

may also be authorized by this permit.

This proposed permit may not be used

to authorize non-linear features

commonly associated with

transportation projects, such as vehicle

maintenance or storage buildings,

parking lots, train stations, or hangars.

For large transportation projects that

would have many potential crossings of

jurisdictional areas, the Corps districts

will determine on a case-by-case basis

whether this permit may be used, or

whether an individual permit may be

required for the work. Corps districts

may also exercise discretionary

authority over any project that, in the

determination of the District Engineer,

has the potential to result in more than

minimal impact on the aquatic

environment. The definition of the term

‘‘single and complete project’’ for linear

projects can be found at 33 CFR 330.2(i).

The Corps is soliciting comments on

several issues related to this proposed

permit, including the acreage limit, and

the prohibition of the use of this permit

for non-linear features associated with

transportation projects.

27. Stream and Wetland Restoration

Activities

The Corps is proposing to modify

NWP 27 to add the restoration and

enhancement of streams to the wetland

and riparian enhancement authorized

by the existing NWP 27. The modified

permit would authorize projects that

would enhance, restore or create

structural habitat features, hydraulics,

and vegetation in altered and/or

degraded non-Section 10 streams and

non-tidal wetlands. Such activities

include, but are not limited to: the

removal of accumulated sediments, the

installation, removal and maintenance

of water control structures, the

installation of current deflectors, the

enhancement, restoration or creation of

riffle and pool stream structure, the

placement of in-stream habitat

structures, modifications of the stream

bed and/or banks to restore or create

stream meanders, the backfilling of

artificial channels and drainage ditches,

the removal of existing drainage

practices and structures, the

construction of small nesting islands,

the construction of open water areas,

and activities needed to re-establish

vegetation, including plowing or discing

for seed bed preparation and

mechanized land-clearing to remove

undesirable vegetation. This NWP

applies to projects that would serve the

purpose of restoring and enhancing

‘‘natural’’ stream hydrology, wetland

hydrology, vegetation, and function in

altered and degraded non-Section 10

streams and associated riparian areas,

and non-tidal wetlands.

This NWP cannot be used to authorize

activities for the conversion of natural

wetlands or streams to another aquatic

use, such as the impoundment of a

stream for waterfowl habitat, or the

conversion of a scrub-shrub wetland

into an herbaceous emergent wetland.

However, this permit may be used to

authorize the construction of projects

that would recreate similar habitat types

in a different location than the existing

wetlands, provided that the project

results in functional gains. For example,

a berm may be proposed to enhance and

enlarge an existing wetland, however,

the impoundment of water behind the

berm would replace an existing

emergent wetland area with open water,

and recreate a similar emergent wetland

at another location within the larger

wetland. This project may be authorized

by NWP 27, because it would not result

in a conversion of one wetland type to

a dissimilar wetland type.

No activities or discharges not

directly related to the restoration of

ecological values or aquatic functions

may be authorized by this permit.

The intent of this permit is to

facilitate the restoration of degraded or

altered streams and wetlands. The goals

of the proposed activities must be based

upon the enhancement, restoration or

creation of the characteristic ecological

conditions that existed, or may have

existed, in the stream or wetland prior

to disturbance, or to other wise improve

the aquatic functions of such areas. The

activities may include, but are not

limited to, the modification of the

hydraulics, vegetation, or physical

structure of the altered or degraded

stream or wetland. Notification to the

District Engineer would be required

only for those projects noted in

condition (iv) of the permit.

The use of this proposed permit with

other NWPs would require notification

to the District Engineer in accordance

with General Condition 15. Use of this

NWP with other NWPs may not be

restricted, provided there is a net gain

of aquatic habitat and/or aquatic

functions. For example, it is likely that

some projects considered under this

permit would require cofferdams to

temporarily dewater the project site, or

interim bank stabilization measures

during construction of channel

improvements. Because neither of these

discharges are, in and of themselves,

directly related to the restoration of

aquatic habitat, they would require

separate authorizations, in these cases

NWP 33 and NWP 13, respectively.

Given the nature of the activities that

may be proposed for each project site,

the Corps will make a case-by-case

determination on the need for other
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36061

authorizations during the review of the

project.

For activities that require notification,

the Corps, with input from other Federal

and State agencies, would evaluate each

project to determine whether the

proposed work would result in a net

increase in aquatic functions. Factors

such as temporal habitat loss, changes

in species composition, and other

aquatic functions would be examined in

the course of the evaluation. This permit

cannot be used to relocate an altered or

degraded stream, where the new stream

would have characteristics similar to the

old stream (i.e., substantial habitat

improvement would not result from the

work). In another example, this permit

would not be applicable to a project that

proposed to remove sediment from a

stream for the purpose of improving or

creating a navigation channel, because

the primary purpose of the work would

not be the improvement of aquatic

functions, although in some cases, some

habitat benefits could result from the

work. Similarly, this permit may not be

used to channelize, deepen or modify a

stream in order to facilitate land

drainage.

The Corps is soliciting comments on

the types of activities that may be

authorized under this proposed permit,

and whether any additional conditions

(e.g., restricting the construction of the

projects to certain types of streams)

should be placed upon its use. The

Corps anticipates that the majority of

projects authorized by this permit

would involve habitat improvements on

small lengths of streams or in small

wetland areas; however, there is no

restriction on the scope of the projects

that can be authorized with this permit.

The Corps anticipates that this permit

will be used primarily by units of State

and local government, private ecological

restoration groups and individual

landowners.

40. Agricultural Activities

The Corps is proposing to modify

NWP 40 to authorize the discharge of

dredged or fill material into non-tidal

waters of the United States, including

non-tidal wetlands, for the purpose of

improving production on existing

agricultural lands. Between May 1,

1997, and December 31, 1997, NWP 26

was used to authorize 317 agricultural

projects. These projects resulted in the

loss of approximately 85 acres of

wetlands and 20,860 linear feet of

stream bed, with 151 acres of

compensatory mitigation provided by

the permittees. The proposed

modification to NWP 40 may be used to

authorize, in addition to the

construction of foundations and

building pads for farm buildings

currently authorized by NWP 40, the

installation or placement of drainage

tiles; construction of drainage ditches or

levees; mechanized land clearing, land

leveling, and similar activities.

Paragraph (a) of the proposed

modification of NWP 40 authorizes

discharges into waters of the United

States, provided the permittee has

obtained a minimal effect exemption

from NRCS and the activity does not

cause the loss of greater than 1 acre of

non-tidal wetlands and does not cause

the loss of greater than 1⁄3 acre of playas,

prairie potholes, and vernal pools. The

minimal effect exemption must be

obtained in accordance with the

provisions of the Food Security Act (16

U.S.C. 3801 et seq.) and the National

Food Security Act Manual(NFSAM).

Paragraph (b) of the proposed

modification authorizes discharges of

dredged or fill material into non-tidal

wetlands on agricultural lands provided

the discharge results in a loss of no

greater than 3 acres of non-tidal

wetlands and the permittee submits and

implements a compensatory mitigation

plan that fully offsets the wetlands loss.

The Corps is considering options for the

type of wetlands that should be

applicable to this activity and is seeking

comments on whether this proposed

modification should be for all non-tidal

wetlands, farmed wetlands only, or

frequently cropped wetlands only.

Farmed wetlands and frequently

cropped wetlands are those wetlands

which are already being manipulated to

some extent for agricultural production.

Non-tidal wetlands include farmed

wetlands and frequently cropped

wetlands in addition to those natural

wetland areas on agricultural land that

have not been previously manipulated

for agricultural production.

The Corps is also considering and

seeking comments on options to

establish acreage limits for these

activities. One option would be to

establish a sliding scale or indexing of

impact acreage limits for this NWP,

based on farm size. Another option is

using a simple upper impact acreage

limit (e.g., 3 acres). A sliding scale could

be based on the size of a farm,

percentage of wetlands, percentage of

farm, or other approaches. The

following table is a sample sliding scale

or indexing of impact acreage limits for

this NWP, based on farm size:

Farm Size

Maximum

acreage

loss authorized for wetlands on

agricultural

lands

Less than 15 acres ................... 1⁄4 acre.

15–25 acres .............................. 1⁄2 acre.

25–50 acres .............................. 3⁄4 acre.

50–100 acres ............................ 1 acre.

100–500 acres .......................... 2 acres.

Greater than 500 acres ............ 3 acres.

NRCS must approve the mitigation

plan if the permittee is a USDA program

participant or non-participant receiving

technical assistance. If the permittee is

a USDA non-participant and has not

had NRCS approve a mitigation plan,

the Corps must approve the mitigation

plan. Discharges into natural playas,

prairie potholes, or vernal pools are not

authorized under the terms of this

paragraph.

Paragraph (c) of the proposed

modification to NWP 40 authorizes

discharges into naturally vegetated

playas, prairie potholes, or vernal pools,

provided the discharge does not result

in the loss of greater than 1 acre of nontidal wetlands. The Corps is also

considering and seeking comments on

options to establish acreage limits for

these activities. One option would be to

establish a sliding scale or indexing of

impact acreage limits for this NWP,

based on farm size. Another option is

using a simple upper impact acreage

limit (e.g., 1 acre). A sliding scale could

be based on size of farm, percentage of

wetlands, percentage of farm, or other

approaches. The following table is a

sample sliding scale or indexing of

impact acreage limits for this NWP,

based on farm size:

Farm size

Maximum

acreage

loss authorized for

playas, prairie potholes,

and vernal

pools

Less than 25 acres ................... 1⁄4 acre.

25—100 acres .......................... 1⁄2 acre.

100—500 acres ........................ 3⁄4 acre.

Greater than 500 acres ............ 1 acre.

The permittee must submit an NRCS- or

Corps-approved compensatory

mitigation plan to fully offset wetland

losses. The compensatory mitigation

plan must be approved by NRCS if the

permittee is a USDA program

participant or non-participant receiving

technical assistance. The Corps must

approve the mitigation plan if the

permittee is not a USDA program
36062 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

participant and has not had NRCS

approve a mitigation plan.

Paragraph (d) of the proposed

modification contains the original terms

of NWP 40. The acreage limit for this

paragraph is 1 acre of non-tidal

wetlands in agricultural production

prior to December 23, 1985. This NWP

does not authorize discharges into

playas, prairie potholes, and vernal

pools for the construction of building

pads or foundations for farm buildings.

In paragraph (e), the Corps is also

proposing to modify NWP 40 to

authorize the relocation of existing

serviceable drainage ditches and

previously substantially manipulated

intermittent and small perennial

streams on agricultural land. However,

the relocation of ditches and streams

authorized by this NWP does not

authorize reconfiguration of those

ditches or streams to increase the area

drained by the ditch or stream (i.e., by

widening or deepening the ditch/stream

beyond its original design dimensions

or configuration). This NWP does not

authorize work in streams other than

described above.

The Corps is proposing to require

notification for activities that result in:

(1) the loss of greater than 1⁄3 acre of

non-tidal waters of the United States,

including playas, prairie potholes, or

vernal pools, or (2) filling or excavating

greater than 500 linear feet of drainage

ditches and previously substantially

modified intermittent and small

perennial streams. The appropriate

Federal and State agencies will be

notified for the loss of greater than 1

acre of non-tidal wetlands.

The aggregate acreage limit for

wetland impacts authorized by this

NWP as a result of the activities in

paragraphs (a), (b), (c), and (d) cannot

exceed 3 acres per farm for the duration

of this nationwide permit (i.e., until

reissuance or any revocation). NWPs are

generally reissued every five years.

When NWPs are reissued they may be

used again on the same farm to

authorize activities for impacts not to

exceed the acreage thresholds

authorized in the reissuance. In

addition, for the purposes of increasing

agricultural production, this NWP

cannot be used with other NWPs to

exceed this 3-acre limit. The use of this

NWP prohibits any future use of

proposed NWP A, whether by the farm

owner/operator or if the property is

sold. For the purposes of this NWP a

single and complete project is defined

as a ‘‘farm’’ (i.e., the land unit under one

ownership, which is operated as a farm,

as reported to the Internal Revenue

Service). We are considering options for

and requesting comments on alternative

suggestions for this definition of a single

and complete project (such as ‘‘farm

tract’’ or ‘‘field’’). The boundary

determination of the single and

complete project as defined for this

NWP will be as determined as of the

effective date of the publication of this

Federal Register notice.

The notification will allow district

engineers to review proposed activities

to ensure that no more than minimal

adverse effects to aquatic resources will

occur. District engineers can require

special conditions on a case-by-case

basis to ensure that the impacts are

minimal. District engineers can exercise

discretionary authority and require an

individual permit for those activities

that may have more than minimal

adverse effects on the aquatic

environment.

Other Suggested NWPs

In response to the December 13, 1996,

Federal Register notice, several

commenters recommended replacement

NWPs for activities which we believe do

not warrant the development of a NWP.

Some of these activities are in areas that

are not considered to be waters of the

United States. Other activities are

exempt from permit requirements of

Section 404 of the Clean Water Act and

Section 10 of the Rivers and Harbors

Act. These comments are addressed

below.

Maintenance of Landfill Surfaces:

One commenter proposed an NWP

authorizing the maintenance of landfill

surfaces. The Resource Conservation

and Recovery Act (RCRA) requires the

use of clay material to cap municipal

solid waste landfills, and grading of

such areas sufficient to prevent water

from ponding on the cap. As refuse in

a landfill decomposes and settles,

portions of the clay cap can subside,

creating ponded areas on the landfill

surface. Wetland species may colonize

these ponded areas. These depressions

increase the chance that water may

infiltrate through the clay cap and come

into contact with the refuse, which may

result in increased pollution of the air

and groundwater. To comply with the

RCRA, Clean Air Act, and Clean Water

Act, these depressions must be filled to

return the landfill cap to the designed

grade and prevent infiltration of water

into the landfill. The regular

maintenance of landfill caps prevents

leaching of contaminants into the

surrounding air, water, and soil.

The Corps believes that these ponded

areas on the landfill cap are not waters

of the United States, because landfill

caps are constructed from uplands and

require continuous maintenance. The

preamble to 33 CFR Part 328 in the

November 13, 1986, Federal Register

(51 FR 41217, Section 328.3) states that

‘‘water filled depressions created in dry

land incidental to construction activity

* * *’’ are not considered waters of the

United States ‘‘* * * until the

construction or excavation operation is

abandoned and the resulting body of

water meets the definition of waters of

the United States.’’ The landfill is not

abandoned because of the routine

maintenance required by law to keep

the landfill surface at the designed

grade. Since routine maintenance of

landfill surfaces does not require a

Section 404 permit, we will not be

developing an NWP for this activity.

Maintenance and Filling of Ditches

Adjacent to Roads and Railways: One

commenter proposed an NWP to

authorize maintenance of roadside

ditches constructed in tidal and nontidal waters of the United States to

collect and convey runoff from the road.

Another commenter proposed an NWP

to authorize discharges of dredged or fill

material to construct additional railroad

tracks, widen or protect railroad beds,

and drain water to prevent saturation of

the railroad bed. Saturation of the

railroad bed can cause settling of the

bed, requiring maintenance or

reconstruction to return the railroad bed

to the proper grade. Flat-bottom ditches

are constructed at the toe of the railroad

embankment (often in upland areas) to

convey runoff from the railway to

natural drainage courses. Roadside and

railway ditches commonly develop

wetland characteristics as a result of

fulfilling their purpose and must be

periodically cleaned out. At other times,

these drainage ditches may be filled to

widen the road or railroad bed. Work in

roadside or railroad ditches may or may

not require a permit from the Corps,

depending on the case-specific

circumstances of the ditch.

The maintenance of roadside or

railroad drainage ditches constructed in

uplands does not require a Section 404

permit since these ditches are not

waters of the United States, even though

they may support wetland vegetation.

The preamble to 33 CFR 328.3, as

published in the November 13, 1986,

issue of the Federal Register (51 FR

41217), states that ‘‘non-tidal drainage

or irrigation ditches excavated on dry

land’’ are generally not considered to be

waters of the United States. Filling these

ditches to widen the road or railroad

bed does not require a Section 404

permit.

If these roadside or railroad ditches

are constructed in waters of the United

States, the maintenance of these ditches

is exempt from Section 404 permit

requirements (see 33 CFR 323.4(a)(3)),
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36063

provided the ditch is restored to its

original dimensions and configuration.

However, the construction of these

ditches in waters of the United States

requires a Section 404 permit and may

be authorized by an individual permit,

an NWP or a regional general permit. A

Corps permit is required to widen the

road or railroad bed in these ditches

constructed in waters of the United

States, if the activity results in a

discharge of dredged or fill material into

waters of the United States or the

activity extends into navigable waters of

the United States. We are proposing to

modify NWP 14 to authorize such

activities, and other linear

transportation activities, in non-tidal

waters of the United States (wetlands

that are contiguous to tidal areas are

also excluded). Widening road or

railroad beds in tidal waters usually

requires an individual permit, but may

be authorized by an NWP, or an

applicable regional general permit. The

construction or maintenance of roadside

and railroad ditches in navigable waters

of the United States requires a Section

10 permit. Furthermore, the

maintenance of roadside ditches where

the proposal includes reconfiguration of

these ditches does not qualify for the

exemption at 33 CFR 323.4(a)(3).

However, we have proposed NWP F in

order to address this situation, provided

the drainage capacity of the ditch is not

increased.

Maintenance of Water Treatment

Facilities: One commenter requested an

activity-specific NWP for maintenance

of water treatment facilities, such as the

removal of material from constructed

settling lagoons and associated

constructed wetlands, maintenance and

de-watering of stock ponds for livestock,

and maintenance of recharge ponds for

water supplies.

Water treatment facilities constructed

in uplands do not require a Section 404

permit for maintenance activities. The

Corps does not generally consider

‘‘[a]rtificial lakes or ponds created by

excavating and/or diking dry land to

collect and retain water and which are

used exclusively for such purposes as

stock watering, irrigation, settling

basins, or rice growing’’ to be waters of

the United States. (Refer to the preamble

to 33 CFR 328.3, as published in the

November 13, 1986, issue of the Federal

Register (51 FR 41217)).

To address some other issues relevant

to water quality, we are proposing NWP

C for the construction and maintenance

of stormwater management facilities,

modifying NWP 3 to authorize the

removal of sediments that accumulate in

the vicinity of structures, and modifying

NWP 7 to authorize removal of

accumulated sediments from outfall and

intake structures and associated canals.

Removal of sediments from detention

and settling basins constructed with a

Section 404 permit would be authorized

by the proposed NWP C as long as the

maintenance activity does not change

the use of the facility. In addition, some

of the activities cited above are covered

by existing NWPs, are exempt from

Clean Water Act regulation, or do not

require a Corps permit. Construction of

stock ponds is an exempt activity; thus,

the de-watering and maintenance of

stock ponds is exempt from 404 Section

permit requirements as long as the

activity is for water quality benefits and

does not enlarge the pond or change the

use to other than providing water for

livestock. Maintenance of recharge

ponds constructed in uplands does not

require a Section 404 permit, but the

maintenance of these ponds constructed

in waters of the United States may be

authorized by existing NWPs, such as

NWPs 3, 18, or 13, or proposed NWP C.

Therefore, these activities have not been

specifically included in the proposed

NWPs.

Mitigation Banks and the NWP

Program. One commenter recommended

that the replacement NWPs should

include language that identifies

mitigation banks as the preferred

method of providing compensatory

mitigation for impacts authorized by

these NWPs. The commenter believes

that placing such an emphasis on

mitigation banking will provide

incentive for the construction of more

mitigation banks by increasing the

certainty that these banks will be used

by permittees to offset losses authorized

by these NWPs. This commenter also

recommended that the NWP program

formally adopt the ‘‘Federal Guidance

for the Establishment, Use, and

Operation of Mitigation Banks’’ (60 FR

58605–58614). The commenter also

recommended the development and

implementation of standard policies

pertaining to the establishment and use

of in lieu fee programs that matches the

federal mitigation bank guidance. The

commenter believes such guidance is

needed to monitor the funds paid by

permittees, monitor the number of acres

of wetlands restored as a result of

payment of those fees, provide

compensatory mitigation in advance of

authorized impacts, and require binding

agreements that will ensure that the

compensatory mitigation is successful.

The Corps disagrees that the proposed

replacement NWPs should stipulate

preference for mitigation banks as a

form of compensatory mitigation. In the

December 13, 1996, Federal Register

notice, the Corps did not direct districts

to require permittees to use mitigation

banks for offsetting wetland losses due

to NWP 26, but suggested that they

could be used, as could in lieu fee

programs and individual mitigation

projects, to provide compensatory

mitigation. Consolidated mitigation

methods (mitigation banks, in-lieu fees)

are often an efficient means of

compensating for impacts, and may

confer benefits to the aquatic

environment as well (see 61 FR 65892).

We recognize that consolidated

mitigation projects, such as mitigation

banks and in lieu fee programs, are more

practicable and successful because of

the planning and implementation efforts

typically expended on these projects by

their proponents. In contrast, many

individual efforts to create, restore, or

enhance wetlands to replace small

wetland impacts are often not successful

and do not provide many benefits to the

aquatic environment, partly because

they are not well planned or executed.

In addition, numerous small

compensatory mitigation efforts can be

expensive and time-consuming to

monitor.

Mitigation banks and in lieu fee

programs are not common throughout

the country. Therefore, it would be

impractical to require their use as a

preferred or sole means of providing

compensatory mitigation for impacts

authorized by the proposed replacement

NWPs. While in lieu fee programs are in

place in several districts, efforts

continue to ensure in lieu fee programs

will provide adequate compensatory

mitigation. District engineers have the

authority to approve the means by

which a particular permittee provides

appropriate compensatory mitigation.

Permittees should not be required to use

a particular mitigation method, just

because it is available. Permittees must

have the flexibility to propose

compensatory mitigation methods that

are within their means to accomplish.

To the extent appropriate, permittees

should consider use of approved

mitigation banks and other forms of

mitigation including in lieu fees.

District engineers will evaluate the

permittee’s proposed mitigation for its

appropriateness and practicability as

indicated in the NWP mitigation

condition.

Expansion of Nationwide Permit 31. A

commenter requested that NWP 31 be

expanded to authorize other

maintenance activities relating to flood

control and maintenance of water

supply facilities, including removing

sediment from natural stream channels

without enlarging the channel,

removing vegetation from streams that

increases aggradation of the stream bed,
36064 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

stabilizing banks, removing aggraded

sediments, and cleaning sediment from

intake pipes that draw water from the

stream or groundwater. The commenter

stated that some of these activities did

not require a Section 404 permit prior

to the implementation of the excavation

rule and are not authorized by NWP 31

or 33 CFR 330.3.

NWP 31 authorizes discharges of

dredged or fill material for the

maintenance of existing flood control

facilities that were either previously

authorized by a Corps permit or 33 CFR

330.3 or constructed by the Corps and

transferred to a local sponsor for

operation and maintenance. In natural

stream channels, most of the activities

cited in the previous paragraph can be

authorized by NWP 31 provided those

channels are part of an authorized flood

control facility. One requirement of

NWP 31 is that the District Engineer

establish a baseline for maintenance.

The maintenance baseline can include

width at ordinary high water, channel

depth, and/or other parameters used to

quantify dimensions of a stream

channel. For example, the maintenance

baseline for a stream channel may a

particular bed elevation. When

sediments accumulate in the stream

channel, raising the elevation of the bed,

NWP 31 may be used to authorize the

removal of the aggraded sediments to

return the stream bed to the

maintenance baseline elevation, even if

the sediment supports wetland

vegetation. Bank stabilization work for

portions of the flood control project may

be authorized by NWP 13, regional

general permits, or an individual

permit. The removal of sediment from

water intake pipes cannot be authorized

by NWP 31. However, removal of

sediments from the vicinity of these

structures may be authorized by NWP

18, the proposed modifications to NWP

3, the proposed modification to NWP 7,

regional general permits, or individual

permits.

Discussion of Nationwide Permit

Conditions

General Conditions

The Corps is proposing to consolidate

all of the General Conditions and

Section 404 Only conditions into one

General Condition Section for the

NWPs. The reason for this consolidation

is that most of the Section 404 Only

conditions have applicability to

activities in Section 10 waters. Some of

the Section 404 Only conditions, such

as conditions 4, 5, 6, and 8, are

essentially always applicable to work in

navigable waters of the United States.

For example, 33 CFR 320.4(r) states that

mitigation is an important aspect of the

review and balancing process on many

Department of the Army permit

applications. The Corps policy at 33

CFR 320.4(r) on mitigation applies to all

types of decisions, including Section 10

permits. Some of the Section 404 only

conditions still generally apply only to

Section 404 activities, but in an effort to

simplify the general conditions for the

NWPs, the Corps is proposing to

combine all conditions into one section.

This consolidation does not increase the

scope of analysis for determining if a

particular project qualifies for an NWP;

the District Engineer must still use

discretion to determine if a particular

condition applies to a particular

activity. We are proposing to modify the

opening language of Section 404 only

conditions 1, 2, 3, 4, 5, 7, and 8 to

‘‘activity [or activities], including

structures and work in navigable waters

of the United States and discharges of

dredged or fill material,’’ to reflect that

broader application. The three modified

conditions (general conditions 9 and 13

and Section 404 only condition 6) and

the modified Section 404 only

conditions would apply to all the

existing NWPs as well as the new NWPs

that are issued.

The following is a discussion of our

reasons for proposing changes to 6

existing NWP conditions and adding

one new NWP general condition. If an

existing NWP condition is not discussed

below, no changes to that condition are

proposed, other than those changes

cited in the previous paragraph.

9. Water Quality. We are proposing to

change the name of this condition from

‘‘Water Quality Certification’’ to ‘‘Water

Quality’’ and modify this condition to

require, for NWPs 12, 14, 17, 18, 21, 32,

40, A, B, C, D, and E, a water quality

management plan, if it is not required as

part of the 401 certification. This

requirement only applies to those

projects for which a water quality

management plan would help keep the

adverse effects on the aquatic

environment minimal, such as

prevention of more than minimal

degradation of downstream water

quality by maintaining a vegetated

buffer adjacent to open water bodies

such as lakes and streams. The

requirement of implementation of a

water quality management plan is not

intended to apply to projects where the

impacts to the aquatic environment are

minimal, such as the construction of a

small road crossing to provide access to

an upland development where the

impacts to waters of the United States

regulated by the Corps (i.e., NWP 14 in

this example) are limited to a small

proportion of the project area. The

requirement for a water quality

management plan is also not intended to

increase the scope of analysis of the

Corps review. The water quality

management plan must implement

methods and technologies to reduce

direct and/or indirect degradation of

water quality as a result of the permitted

work. Practices such as vegetated

buffers adjacent to open waters,

sediment traps and barriers, sediment

detention basins and ponds, infiltration

trenches, and nutrient management

techniques can be used to reduce

degradation of water quality due to

adjacent land use.

13. Notification. We are proposing to

require notification to the District

Engineer for all of the proposed NWPs,

based on varying thresholds, generally

1⁄3 of an acre of impact. Because the

Corps has added so many NWPs with a

PCN requirement, the PCN process must

be applied in a simple and consistent

manner. Therefore, for discharges

causing the loss of greater than 1 acre of

waters of the United States, the

notification will be sent to the

appropriate Federal and State agencies

in accordance with paragraph (e) of

General Condition 13. For other

activities requiring notification to the

District Engineer, the PCN will be

subject to Corps-only review. The PCN

will be subject to a 30-day review

period, from the date of receipt of a

complete PCN by the District Engineer.

Corps district personnel will utilize the

PCN to assess the environmental

impacts of the proposed work and can

recommend appropriate actions, such as

special conditions or compensatory

mitigation, to ensure that impacts are

minimal.

16. Subdivisions. The Corps is

including a condition in the proposed

NWPs similar to the ‘‘subdivision

clause’’ of NWP 26, which prohibited

the use of NWP 26 for real estate

subdivisions created after October 5,

1984, where new discharges of dredged

or fill material into waters of the United

States in said subdivision would cause

the upper acreage limit of NWP 26 to be

exceeded. The Corps is proposing to

include a similar clause for NWPs A and

B. The purpose of this condition is to

prevent the division of property as a

means of getting around the acreage

limits of NWPs A and B. The

subdivision clause would state that the

cumulative upper limit for a subdivision

seeking authorization under NWP A

would be 3 acres for a single and

complete project, and that the

cumulative upper limit for subdivisions

seeking to use NWP B would be 10 acres

for a single and complete. The term

‘‘single and complete’’ means if, upon
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36065

authorization, any given project can be

constructed, independent of any

reliance on subsequent Corps of

Engineers authorization for additional

regulated activities (i.e., activities

following those under current

authorization consideration). In other

words, a project may be considered

single and complete if it has

independent utility.

19. Suitable material. The Corps is

proposing to modify this general

condition by inserting the words ‘‘* * *

used for construction or * * *’’

between ‘‘material’’ and ‘‘discharged.’’

This change was made to ensure that

materials used for structures or work in

navigable waters of the United States are

made of suitable materials.

20. Mitigation. We are proposing to

delete the words ‘‘* * * unless the

District Engineer approves a

compensation plan that the District

Engineer determines is more beneficial

to the environment than on-site

minimization or avoidance measures.’’

from this condition. This condition will

be modified to require restoration,

creation, enhancement, or preservation

of aquatic resources to offset losses of

functions and values due to authorized

impacts. This condition also stresses the

importance of including upland or

wetland vegetated buffers adjacent to

open water areas as an important

component of any mitigation plan.

21. Spawning areas. The Corps is

proposing to add a sentence to this

condition to prohibit activities that fill

or excavate important spawning areas.

22. Management of Water Flows. We

are proposing to change the title of this

condition from ‘‘Obstruction of High

Flows’’ to ‘‘Management of Water

Flows’’ and modifying it to require that

permittees design their projects to

maintain preconstruction downstream

flow conditions. The permittee must, to

the extent practicable, maintain the flow

rates from the site as close as is feasible

to preconstruction levels to minimize

the potential for adverse effects to

aquatic organisms and sediment

transport in the stream. The removal of

vegetation, and the increase in the

percentage of impervious surfaces on a

project site can increase runoff flows

from the site, which can result in

downcutting of stream beds and

degradation of aquatic habitat. This

condition also requires that projects be

designed to reduce upstream impacts

such as flooding or draining, unless the

primary purpose of the project is to

impound water or reestablish drainage.

Definitions

To provide for consistency in the

implementation of the proposed NWPs,

the Corps is proposing to include

definitions for some terms used in these

NWPs. The definitions are located in

Section E of this notice. The Corps is

seeking comments on these definitions.

Nationwide Permit 29 for Single Family

Housing

On July 15, 1996, a lawsuit was filed

by several organizations against the

Corps, challenging the issuance of NWP

29 under Section 404 of the Clean Water

Act (CWA). The plaintiffs challenged

the issuance of NWP 29 because they

believe that: (1) the Corps violated the

CWA by issuing an NWP for activities

that result in more than minimal

adverse environmental effects; (2) the

Corps violated the CWA by issuing an

NWP for activities that are not similar

in nature; (3) the Corps violated the

procedural requirements of the Section

404(b)(1) Guidelines of the CWA; (4) the

Corps violated the Endangered Species

Act (ESA) by failing to consult with the

U.S. Fish and Wildlife Service (FWS)

and the National Marine Fisheries

Service (NMFS); (5) the Corps violated

the Fish and Wildlife Coordination Act

by failing to consult with the FWS and

NMFS; (6) the Corps violated the

National Environmental Policy Act

(NEPA) by failing to prepare an

Environmental Impact Statement (EIS);

and (7) the issuance of NWP 29 was

arbitrary, capricious, and an abuse of

discretion. After the Corps reissued

NWP 29 on December 13, 1996, a

supplemental complaint was filed by

the plaintiffs challenging the reissuance

of NWP 29.

On April 30, 1998, a court order was

issued by the United States District

Court, District of Alaska, remanding the

Secretary of the Army to consider

excluding high value waters from NWP

29, consider the use of lower acreage

limits for NWP 29, and to set forth those

considerations in an amended

environmental assessment (EA). The

court determined that the EA issued on

December 10, 1996, inadequately

addressed the exclusion of high value

waters and lower acreage limits for

NWP 29. Pending the Secretary of the

Army’s consideration of these issues,

the court enjoined the Corps from

accepting any preconstruction

notifications for NWP 29 after June 30,

1998, unless the court orders otherwise.

The court did not address the other

issues raised by the plaintiffs because

actions undertaken by the Corps as a

result of the remand may have

significant impacts on the resolution of

the other arguments. It should be noted

that the Corps is already undergoing

ESA consultation for NWP 29, which

should be concluded this summer.

NWP 29 authorizes single family

housing activities that have minimal

adverse effects, both individually and

cumulatively, on the aquatic

environment. For this NWP, the Corps

has several mechanisms to protect high

value waters and wetlands. All activities

authorized under NWP 29 require

preconstruction notification to the

Corps. The preconstruction notification

allows district engineers to review each

proposed activity to determine if it will

result in minimal adverse

environmental effects, and if necessary,

take measures such as adding special

conditions to the NWP authorization to

further minimize the adverse effects of

the activity. Special conditions may

require compensatory mitigation to

offset losses of aquatic resource

functions and values. If the proposed

work will result in more than minimal

adverse environmental effects, then the

District Engineer will exercise

discretionary authority to require an

individual permit, with the requisite

alternatives analysis and public interest

review. District engineers can protect

high value waters and endangered

species by regionally conditioning NWP

29. Regional conditioning may exclude

the use of NWP 29 from certain waters,

such as non-tidal wetlands contiguous

to tidal waters, lower the acreage limit,

or exclude the use of NWP 29 in areas

where endangered species or their

critical habitat is known to occur. The

regional conditioning process is

discussed elsewhere in this notice.

Corps districts have been collecting

data on the use of NWP 29 since 1995.

Districts have been monitoring the use

of NWP 29 by tracking the number of

NWP 29 verifications, the number of

PCNs where discretionary authority was

exercised to require individual permits

for the proposed activity, the proposed

acreage of impacts, the authorized

acreage of impacts, and the acreage of

compensatory mitigation offered and

accepted for NWP 29 authorizations.

During Fiscal Year 1996, NWP 29 was

used 333 times to authorize the

construction of single family residences

and attendant features. Discretionary

authority was exercised for 9 PCNs to

review the proposed work under the

individual permit process. During 1996,

applicants proposed to fill 101.8 acres of

non-tidal waters of the United States,

but were authorized to fill only 62.7

acres. The acreage of compensatory

mitigation offered and accepted during

this time period was 2.3 acres. The

average loss of waters of the United

States per NWP 29 authorization was

0.19 acres.

During Fiscal Year 1997, NWP 29 was

used 188 times. The Corps asserted
36066 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

discretionary authority and required

individual permit review for two

requests for NWP 29 authorization.

During this time period, applicants

proposed to fill 30.5 acres of non-tidal

waters of the United States, but were

authorized to fill 28.1 acres of waters of

the United States. The acreage of

compensatory mitigation offered and

accepted during this time period was

11.3 acres. During 1997, the average loss

of waters of the United States per NWP

29 authorization was 0.15 acres.

Corps districts are also monitoring

cumulative impacts to ensure

compliance with the CWA. Corps

districts generally monitor regulated

activities on a watershed basis to ensure

that the activities authorized by NWP 29

and other Corps permits do not result in

more than minimal cumulative adverse

effects on the aquatic environment in a

particular watershed. Division engineers

can revoke NWP 29 in high value

aquatic environments or in specific

geographic areas (e.g., watersheds), if

they believe that the use of NWP 29 in

these areas will result in more than

minimal individual and/or cumulative

adverse environmental effects to the

aquatic environment.

In accordance with the court order,

we have prepared a revised EA for NWP

29. The revised EA includes a Section

404(b)(1) Guidelines compliance review

and a Finding of No Significant Impact

(FONSI). The revised EA also discusses

how high value waters are protected

under the NWP and the consideration of

lower acreage limits for NWP 29. Copies

of the revised EA and FONSI are

available at the office of the Chief of

Engineers, at each District office, and on

the Corps home page at http://

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

cw/cecwo/reg/. Based on these analyses,

the Corps has determined that the

issuance of NWP 29 complies with the

requirements for issuance under general

permit authority.

During the comment period for the

proposed reissuance of NWP 29, the

Corps considered different acreage

limits for this NWP. Several

commenters recommended that the

acreage limit be reduced to 1⁄10 acre. A

few other commenters recommended an

acreage limit of 1⁄4 acre. As discussed

previously in this notice, the average

acreage impact authorized by NWP 29

was 0.19 acre and 0.15 acre during fiscal

years 1996 and 1997, respectively. The

average acreage impact requested by

applicants was 0.31 acre in 1996 and

0.16 acre in 1997. During their review

of PCNs for NWP 29 authorization,

district engineers required additional

avoidance and minimization to ensure

that the authorized impacts were

minimal. Although NWP 29 has an

acreage limit of 1⁄2 acre, few projects

were authorized with that amount of

impact. District engineers require

avoidance and minimization during the

PCN process to ensure minimal adverse

environmental impacts due to the work.

A higher acreage limit, although it may

be rarely used, provides district

engineers with the flexibility to

authorize projects that have minimal

adverse effects under NWP 29, even

though they may adversely affect a

somewhat larger area of low-value

wetlands. As a result, the Corps

considered decreasing the acreage limit

of this NWP and determined that lower

acreage limits are not necessary in terms

of environmental effects or the workload

that would be required to process

requests for higher acreage impacts

through the individual permit process.

To provide further assurance that

NWP 29 authorizes only single family

housing activities that have minimal

adverse environmental effects, the Corps

is now proposing to modify the acreage

limit for NWP 29 to 1⁄4 acre. The public

is invited to provide comments on the

proposed modification to the acreage

limit for NWP 29 within 60 days of the

date of this notice. The Corps is not

requesting comments on the other terms

of NWP 29. In the interim, the Corps is

suspending NWP 29 for activities that

result in the loss of greater than 1⁄4 acre

of non-tidal waters of the United States.

It is unlikely that the suspension or

modification of NWP 29 will result in a

substantial burden on the regulated

public, since the average NWP 29

authorization in 1996 and 1997 resulted

in the loss of 0.19 acre of non-tidal

waters of the United States. Most small

landowners can design their single

family residences to comply with this

new acreage limit for NWP 29. If not,

then they can request authorization

through the individual permit process

or by a regional general permit, if

available.

Therefore, from the date of this notice

until the Corps has determined whether

or not to modify NWP 29, NWP 29 can

be used to authorize discharges of

dredged or fill material to construct

single family housing, including

attendant features, provided the

discharge does not result in the loss of

greater than 1⁄4 acre of non-tidal waters

of the United States, including non-tidal

wetlands. All other terms and

limitations for NWP 29, as published in

the December 13, 1996, issue of the

Federal Register, remain in effect.

Discharges for single family housing

activities that result in the loss of greater

than 1⁄4 acre of non-tidal waters of the

United States, including non-tidal

wetlands, will be processed either under

the individual permit process or by

regional general permits. For

information purposes, the text of the

proposed modification of NWP 29 is as

follows:

29. Single-Family Housing.

Discharges of dredged or fill material

into non-tidal waters of the United

States, including non-tidal wetlands for

the construction or expansion of a

single-family home and attendant

features (such as a garage, driveway,

storage shed, and/or septic field) for an

individual permittee provided that the

activity meets all of the following

criteria:

a. The discharge does not cause the

loss of more than 1⁄4 acre of non-tidal

waters of the United States, including

non-tidal wetlands;

b. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

c. The permittee has taken all

practicable actions to minimize the onsite and off-site impacts of the

discharge. For example, the location of

the home may need to be adjusted onsite to avoid flooding of adjacent

property owners;

d. The discharge is part of a single

and complete project; furthermore, that

for any subdivision created on or after

November 22, 1991, the discharges

authorized under this NWP may not

exceed an aggregate total loss of waters

of the United States of 1⁄4 acre for the

entire subdivision;

e. An individual may use this NWP

only for a single-family home for a

personal residence;

f. This NWP may be used only once

per parcel;

g. This NWP may not be used in

conjunction with NWP 14, NWP 18, or

NWP 26, for any parcel; and,

h. Sufficient vegetated buffers must be

maintained adjacent to all open water

bodies, streams, etc., to preclude water

quality degradation due to erosion and

sedimentation.

For the purposes of this NWP, the

acreage of loss of waters of the United

States includes the filled area

previously permitted, the proposed

filled area, and any other waters of the

United States that are adversely affected

by flooding, excavation, or drainage as

a result of the project. Whenever any

other NWP is used in conjunction with

this NWP, the total acreage of impacts

to waters of the United States of all

NWPs combined, can not exceed 1⁄4

acre. This NWP authorizes activities

only by individuals; for this purpose,

the term ‘‘individual’’ refers to a natural

person and/or a married couple, but

does not include a corporation,
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36067

partnership, or similar entity. For the

purposes of this NWP, a parcel of land

is defined as ‘‘the entire contiguous

quantity of land in possession of,

recorded as property of, or owned (in

any form of ownership, including land

owned as a partner, corporation, joint

tenant, etc.) by the same individual

(and/or that individual’s spouse), and

comprises not only the area of wetlands

sought to be filled, but also all land

contiguous to those wetlands, owned by

the individual (and/or that individual’s

spouse) in any form of ownership’’.

(Sections 10 and 404)

Authority

Accordingly, we are proposing to

issue new NWPs, modify existing

NWPs, and add conditions and to add

NWP definitions 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: June 23, 1998.

Approved:

Russell L. Fuhrman,

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

Works.

Nationwide Permits, Conditions, Further

Information, and Definitions

A. Index of Nationwide Permits, Conditions,

Further Information, and Definitions

Proposed New Nationwide Permits

A. Residential, Commercial, and Institutional

Activities

B. Master Planned Development Activities

C. Stormwater Management Facilities

D. Passive Recreational Facilities

E. Mining Activities

F. Reshaping Existing Drainage Ditches

Nationwide Permits Proposed To Be

Modified

3. Maintenance

7. Outfall Structures and Maintenance

12. Utility Activities

14. Linear Transportation Crossings

27. Stream and Wetland Restoration

Activities

40. Agricultural Activities

Nationwide Permit Conditions

General Conditions

1. Navigation

2. Proper Maintenance

3. Soil Erosion and Sediment Controls

4. Aquatic Life Movements

5. Equipment

6. Regional and Case-by-Case Conditions

7. Wild and Scenic Rivers

8. Tribal Rights

9. Water Quality*

10. Coastal Zone Management

11. Endangered Species

12. Historic Properties

13. Notification*

14. Compliance Certification

15. Multiple Use of Nationwide Permits

16. Subdivisions*

17. Water Supply Intakes

18. Shellfish Production

19. Suitable Material*

20. Mitigation*

21. Spawning Areas*

22. Management of Water Flows*

23. Adverse Effects from Impoundments

24. Waterfowl Breeding Areas

25. Removal of Temporary Fills

(* Indicates conditions proposed to be

changed.)

Further Information

Definitions

1. Aquatic Bench

2. Best Management Practices

3. Channelized stream

4. Contiguous wetland

5. Drainage ditch

6. Ephemeral stream

7. Farm

8. Intermittent stream

9. Loss of waters of the United States

10. Noncontiguous wetland

11. Non-tidal wetland

12. Perennial stream

13. Riffle and pool complexes

14. Stormwater management

15. Stormwater management facilities

16. Tidal wetland

17. Vegetated shallows

18. Waterbody

B. Nationwide Permits

A. Residential, Commercial, and

Institutional Activities

Discharges into non-tidal waters of

the United States, excluding non-tidal

wetlands contiguous to tidal waters,

associated with residential, commercial,

and institutional development activities.

Residential developments (multiple and

single unit development for other than

the personal residence of the permittee),

commercial developments (such as

retail stores, industrial parks,

restaurants, business parks, shopping

centers, and commercial recreational

activities) and institutional

developments (such as schools, fire

stations, government office buildings,

judicial buildings, public works

buildings, libraries, hospitals and places

of worship), are authorized, and may

include activities such as: grading,

rechannelization, expansion of an

existing development, building pads,

soil erosion and sediment control

measures, and infrastructure such as

utilities, roads, driveways, sidewalks,

and recreation activities associated with

the development, including activities

such as playgrounds, ball fields, golf

courses, nature trails, etc., provided that

the activity meets all of the following

criteria:

a. The discharge does not cause the

loss of greater than 3 acres of non-tidal

waters of the United States, using an

index of impact acreage as follows*:

Parcel size

Maximum

acreage

loss authorized

Less than 5 acres ..................... 1/4 acre.

5–10 acres ................................ 1/2 acre.

10–15 acres .............................. 1 acre.

15–100 acres ............................ 2 acres.

Greater than 100 acres ............ 3 acres.

b. For discharges causing the loss of

greater than 1/3 acre of non-tidal waters

of the United States, including non-tidal

wetlands, the permittee notifies the

District Engineer in accordance with the

‘‘Notification’’ general condition;

c. For activities that involve

excavation and/or filling of open waters,

including perennial or intermittent

waterways, below the ordinary high

water mark, the permittee notifies the

District Engineer in accordance with the

‘‘Notification’’ general condition;

d. For discharges in special aquatic

sites, including wetlands, the

notification must also include a

delineation of affected special aquatic

sites, including wetlands;

e. The discharge is part of a single and

complete project;

f. The permittee must avoid and

minimize discharges into waters of the

United States at the project site to the

maximum extent practicable, and the

notification must include a written

statement to the District Engineer

detailing compliance with this

condition, i.e., why the discharge must

occur in waters of the United States and

avoidance or additional minimization

cannot be achieved;

g. For discharges requiring

notification the permittee must submit a

mitigation proposal that will offset the

loss to waters of the United States;

h. Whenever any other NWP is used

in conjunction with this NWP, the

combined total acres of impacts to

waters of the United States cannot

exceed 3 acres and any combined total

acreage exceeding 1⁄3 acre requires that

the permittee notify the District

Engineer in accordance with the

‘‘Notification’’ general condition; and

i. Any work authorized with this

permit must not cause more than minor

changes to the flow characteristics of

any stream, or measurably degrade

water quality (See General Conditions 9

and 22). (Sections 10 and 404)

*Note: For the purposes of the proposed

NWP, a discussion of acreage limit options is

provided in the preamble.

B. Master Planned Development

Activities

Discharges into non-tidal waters of

the United States, excluding non-tidal
36068 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

wetlands contiguous to tidal waters,

associated with a comprehensively

planned development which may

include a combination of, but is not

limited to, the following: residential

housing, office parks, retail stores,

restaurants, playgrounds, ball fields,

golf courses, ponds, impoundments,

community green space, parks, trails,

soil erosion and sediment control

measures, sewage and/or water

treatment facilities, storm water

management facilities, and

infrastructure such as utilities, roads,

driveways, and sidewalks, provided that

the activity meets all of the following

criteria:

a. The discharge does not cause the

loss of greater than 10 acres of non-tidal

waters of the United States, using an

index of impact acreage as follows*:

Parcel size

Maximum

acreage

loss authorized

100–200 acres .......................... 3 acres.

200–300 acres .......................... 5 acres.

300–500 acres .......................... 7 acres.

Greater than 500 acres ............ 10 acres.

b. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

c. For discharges in all waters of the

United States, including wetlands, the

notification must also include a

delineation of affected waters and/or

wetlands;

d. The notification will include a

wetland assessment utilizing a

functional assessment approach

approved by the District Engineer;

e. The discharge is part of a single and

complete project; however the activity

may proceed in phases;

f. The permittee must avoid and

minimize discharges into waters of the

United States at the project site to the

maximum extent practicable, and the

notification must include a written

statement to the District Engineer

detailing compliance with this

condition (i.e., why the discharge must

occur in waters of the United States and

why avoidance or additional

minimization cannot be achieved);

g. The notification must include a

mitigation proposal that will offset the

loss to waters of the United States;

h. Deed restrictions, protective

covenants, land trusts, or other means of

conservation and preservation will be

required for all waters of the United

States, including wetlands, on the

project site, including riparian buffers

and/or vegetated buffers adjacent to

open water, as well as all existing,

enhanced, restored, or created wetland

areas; and

i. Whenever any other NWP is used in

conjunction with this NWP, the

combined total acres of impacts to

waters of the United States cannot

exceed 10 acres.

Master Planned Development: The

intent of defining Master Planned

Development is to distinguish these

activities from those that would be

authorized under NWP A. Unlike NWP

A, this NWP is limited to authorizing

those activities that are mixed-use in

nature. Master planned developments

are designed, constructed, and managed

to integrate multiple uses in a manner

that conserves and enhances the

functions and values of the water

resources on the project site. NWP B is

intended to be consistent with the

increasing nationwide efforts by

counties and local communities across

the country to encourage mixed-use

development and to motivate land use

planning alternatives that incorporate

consideration of the environment. This

NWP is designed to match up with the

efforts of local communities to achieve

these goals by encouraging the

development of environmentally

responsible, multiple-use communities

and building upon the incentives

currently provided by State and local

governments. Such master planned

developments provide communities

with an opportunity to address a variety

of concerns, including protecting

sensitive natural areas, consolidating

infrastructure and maximizing the

delivery of urban services. The project

may consist of cluster developments

surrounded by a substantial amount of

open or green space, including

vegetated buffers to waters of the United

States. All remaining waters of the

United States on the project site,

including wetlands and riparian areas

that are restored, enhanced, or created

as compensatory mitigation for impacts

authorized by this NWP, as well as

vegetated buffers, will be set aside and

preserved through deed restrictions,

protected covenants, land trusts, or

other legal means, to protect these areas

and maintain water quality and aquatic

resource values. (Sections 10 and 404)

*Note: For the purposes of the proposed

NWP, a discussion of acreage limit options is

provided in the preamble.

C. Stormwater Management Facilities

Discharges of dredged or fill material

into non-Section 10 waters of the United

States, including wetlands, for the

construction and maintenance of

stormwater management facilities,

including activities for the excavation

for stormwater ponds/facilities,

detention, and retention basins,

installation and maintenance of water

control structures, outfall structures and

emergency spillways; and the

maintenance dredging of existing

stormwater management ponds/

facilities, detention and retention basins

provided that the activity meets all of

the following criteria:

a. The discharge or excavation for the

construction of new stormwater

management facilities does not cause

the loss of greater than 2 acres of nontidal wetlands;

b. For discharges or excavation for the

construction of new stormwater

management facilities causing the loss

of greater than 1⁄3 acre of non-tidal

waters of the United States, including

wetlands, or for the maintenance of

existing stormwater management

facilities causing the loss of greater than

1 acre of non-tidal waters of the United

States, or for the loss of greater than 500

linear feet of intermittent stream bed,

the permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition. In

addition the notification must include:

(1) A maintenance plan, which is in

accordance with State and local

requirements, if any;

(2) For discharges in special aquatic

sites, including wetlands, the

notification must include a delineation

of affected areas; and

(3) For discharges involving

construction of stormwater management

facilities, the notification must include

a mitigation proposal that will offset the

loss of waters of the United States. In

appropriate circumstances,

compensatory mitigation can be

provided by the use of bioengineering

techniques and aquatic benches within

the stormwater management facility.

Compensatory mitigation will not be

allowed in designated facility

maintenance areas. Where the size of

the facility allows for the construction

of sediment forebays, such designs will

be used to the maximum extent

practicable to enhance water quality and

to minimize the maintenance area of the

facility. Future maintenance in

constructed areas will not require

mitigation provided that maintenance is

accomplished in designated

maintenance areas and not within

compensatory mitigation areas.

c. The stormwater management

facility must be designed using Best

Management Practices and watershed

protection techniques (e.g., vegetated

buffers, siting considerations to

minimize adverse effects to aquatic

resources, bioengineering methods

incorporated into the facility design to

benefit water quality and minimize
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36069

adverse effects to aquatic resources from

storm flows especially downstream of

the facility, as appropriate) that provide

for long term aquatic protection and

enhancement, to the maximum extent

practicable;

d. Maintenance excavation will be in

accordance with an approved

maintenance plan and will not exceed

the original contours of the facility as

approved and constructed; and

e. The discharge is part of a single and

complete project.

f. This permit does not authorize the

discharge of dredged or fill material for

the construction of new stormwater

management facilities in perennial

streams. (Section 404)

D. Passive Recreational Facilities.

Discharges of dredged or fill material

into non-tidal waters of the United

States, excluding non-tidal wetlands

contiguous to tidal waters, for the

construction or expansion of passive

recreational facilities, provided that the

activity meets all of the following

criteria:

a. The discharge does not cause the

loss of greater than 1 acre of non-tidal

waters of the United States, including

non-tidal wetlands;

b. For discharges causing the loss of

greater than 1⁄3 acre of non-tidal waters

of the United States, or the loss of

greater than 500 linear feet of stream

bed, the permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

c. For discharges in special aquatic

sites, including wetlands, the

notification must include a delineation

of affected special aquatic sites,

including wetlands; and

d. The discharge is part of a single

and complete project.

A passive recreational facility is

defined as a low-impact recreational

facility that is integrated into the natural

landscape and consists primarily of

open space that does not substantially

change preconstruction grades or

deviate from natural landscape

contours. The primary function of

passive recreational facilities does not

include the use of motor vehicles,

buildings, or impervious surfaces.

Examples of passive recreational

facilities that may be authorized by this

NWP include: hiking trails, bike paths,

horse paths, nature centers, and

campgrounds (excluding trailer parks).

The construction or expansion of golf

courses and ski areas may be authorized

by this NWP, provided the golf course

or ski area does not substantially deviate

from natural landscape contours and is

designed to minimize adverse effects to

waters of the United States and riparian

areas through the use of such practices

as integrated pest management,

adequate stormwater management

facilities, vegetated buffers, reduced

fertilizer use, etc. The facility must have

an adequate water quality management

plan in accordance with General

Condition 9, such as a stormwater

management facility constructed in

uplands to ensure that the recreational

facility results in no substantial adverse

effects to water quality. This NWP also

authorizes support facilities, such as

maintenance and storage buildings,

office buildings, rental buildings, and

stables that are directly related to the

recreational activity. It does not

authorize other buildings, hotels,

restaurants, etc. Whenever any other

NWP is used in conjunction with this

NWP, the total acreage of impacts to

waters of the United States of all NWPs

combined, cannot exceed 1 acre. The

construction or expansion of playing

fields (e.g., baseball or football fields),

basketball and tennis courts, race tracks,

stadiums, and arenas is not authorized

by this NWP. (Section 404)

E. Mining Activities

Discharges of dredged or fill material

into non-tidal waters of the United

States, excluding non-tidal wetlands

contiguous to tidal waters, for aggregate

mining (i.e., sand, gravel, crushed and

broken stone) and hard rock metal/

mineral mining activities (i.e.,

extraction of metalliferous ores from

subsurface locations), including

exploration, excavation, dredging,

processing, stream relocation and/or

diversion, overburden disposal,

stockpiling, mechanized landclearing,

mined land reclamation, and support

activities, provided the discharge meets

all of the following criteria:

a. Lower perennial riverine systems:

Any discharges for excavation and

dredging activities associated with sand

and gravel mining in lower perennial

riverine systems as defined by the

Cowardin classification system for

aquatic habitats (areas that are defined

as special aquatic sites [40 CFR Subpart

E, 230.40 through 230.45] are excluded),

must:

1. not cause the loss of greater than 2

acres of waters of the United States;

2. not result in the excavation of fish

spawning areas and shellfish beds;

3. include necessary measures to

prevent increases in stream gradient and

water velocities, to prevent adverse

effects (e.g., head cutting, bank erosion)

on upstream and downstream channel

conditions;

4. not result in adverse affects on the

course, capacity, or condition of

navigable waters of the United States;

and

5. include measures to minimize

downstream turbidity;

b. Intermittent and ephemeral

streams: Any discharges for excavation,

dredging, processing, exploration,

trenching, stockpiling, and mined land

reclamation activities associated with

sand and gravel mining activities in

intermittent and ephemeral streams

(areas that are defined as special aquatic

sites [40 CFR Subpart E, 230.40 through

230.45] are excluded), must:

1. not cause the loss of greater than 1

acre of waters of the United States; and

2. include necessary measures to

prevent increases in stream gradient and

water velocities, to prevent adverse

effects (e.g., head cutting, bank erosion)

on upstream and downstream channel

conditions;

c. Intermittent and small perennial

stream relocations: Any discharges for

stream relocation/diversion activities

(i.e., mining may not occur in open

waters below the ordinary high water

mark; only stream relocation and

diversion are authorized) associated

with crushed or broken stone mining in

intermittent and small perennial

streams (areas that are defined as special

aquatic sites [40 CFR Subpart E, 230.40

through 230.45] are excluded), must:

1. not cause the loss of greater than 1

acre of waters of the United States;

2. include necessary measures to

prevent increases in stream gradient and

water velocities and to prevent adverse

effects (e.g., head cutting, bank erosion)

on upstream and downstream channel

conditions; and

3. not result in the excavation of fish

spawning areas and shellfish beds;

d. Isolated wetlands and wetlands

above the ordinary high water mark, in

non-Section 10 waters: Any discharges

for excavation, exploration, dredging,

processing, mechanized landclearing,

stockpiling, stream relocation/diversion,

on-site overburden disposal, and mined

land reclamation associated with

aggregate mining activities in isolated

wetlands and wetlands above the

ordinary high water mark in nonSection 10 streams, must:

1. not cause the loss of greater than 2

acres of waters of the United States; and

2. be compensated for through

mitigation approved by the Corps;

e. Dry washes and arroyos: Any

discharges, including excavation,

associated with aggregate mining

activities in dry washes and arroyos,

must:

1. not cause the loss of greater than 2

acres of waters of the United States;

2. include necessary measures to

prevent increases in stream gradient and

water velocities and to prevent adverse

effects (e.g., head cutting, bank erosion)
36070 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

on upstream and downstream channel

conditions; and

3. include necessary measures to

prevent adverse water quality effects on

groundwater resources;

f. Intermittent and small perennial

stream relocations: Any discharges for

stream relocation/diversion activities

(i.e., mining may not occur in open

waters below the ordinary high water

mark; only stream relocation and

diversion are authorized) associated

with hard rock metal/mineral mining

activities in intermittent and small

perennial streams (areas that are defined

as special aquatic sites [40 CFR Subpart

E, 230.40 through 230.45] are excluded),

must:

1. not cause the loss of greater than 1

acre of waters of the United States;

2. include necessary measures to

prevent increases in stream gradient and

water velocities and to prevent adverse

effects (e.g., head cutting, bank erosion)

on upstream and downstream channel

conditions; and

3. not result in the excavation of fish

spawning areas and shellfish beds;

g. Isolated wetlands and wetlands

above the ordinary high water mark, in

non-Section 10 waters: Any discharges

for excavation, exploration, dredging,

processing, mechanized landclearing,

stockpiling, stream relocation/diversion,

on-site overburden disposal, and mined

land reclamation associated with hard

rock metal/mineral mining activities in

isolated wetlands and wetlands above

the ordinary high water mark in nonSection 10 streams, must:

1. not cause the loss of greater than 2

acres of waters of the United States; and

2. be compensated for through

mitigation approved by the Corps;

h. Dry washes and arroyos: Any

discharges, including excavation,

associated with hard rock metal/mineral

mining activities in dry washes and

arroyos, must:

1. not cause the loss of greater than 2

acres of waters of the United States;

2. include necessary measures to

prevent increases in stream gradient and

water velocities and to prevent adverse

effects (e.g., head cutting, bank erosion)

on upstream and downstream channel

conditions; and

3. include necessary measures to

prevent adverse water quality effects on

groundwater resources;

i. Support activities: Any discharges

for support activities associated with

aggregate mining and/or hard rock

metal/mineral mining activities,

including the construction of berms,

access and haul roads, rail lines, dikes,

road crossings, settling ponds and

settling basins, ditching, storm water

and surface water management, head

cutting prevention, sediment and

erosion controls, and mechanized land

clearing, must not cause the loss of more

than 1 acre of waters of the United

States, including wetlands. This acreage

limit does not include temporary

mining roads that are exempt under

Section 404(f). The limit of 1 acre of

impact for support activities will be in

addition to the acreage allowed for the

mining activities;

j. Single and complete project: The

discharges must be for a single and

complete project. Multiple mining

activity discharges into several

designated parcels of a mining project,

may be included together as long as the

acreage limit for each aquatic resource

type is not exceeded and the

combination of more than one aquatic

resource type does not exceed 2 acres.

The total maximum acreage of waters of

the United States adversely affected by

the mining activities combined with the

support activities will not exceed 3

acres (2 acres)*;

k. Notification: The permittee notifies

the District Engineer in accordance with

the ‘‘Notification’’ general condition.

The notification must include a

description of all waters of the United

States impacted by the project, and,

where required, a discussion of

measures to minimize or prevent

adverse effects (e.g., head cutting, bank

erosion, turbidity, water quality) to

waters of the United States, a

description of measures taken to meet

the criteria associated with the

discharge being permitted, and a

reclamation plan; and

l. Authorized activities associated

with hard rock/mineral mining may

include beneficiation and mineral

processing. This NWP does not

authorize hard rock/mineral mining in

Section 10 waters or any mining activity

in wetlands that are contiguous to tidal

waters. (Sections 10 and 404)

*Note: For the purposes of the proposed

NWP, a discussion of acreage threshold

options being considered for NWP E is

provided in the preamble.

F. Reshaping Existing Drainage Ditches

Discharges of dredged or fill material

into non-Section 10 waters of the United

States to modify the cross-sectional

configuration of existing serviceable

drainage ditches constructed in nonSection 10 waters of the United States.

No compensatory mitigation is required

if the work is designed to improve water

quality (e.g., by regrading the drainage

ditch with gentler slopes, which can

reduce erosion, increase growth of

vegetation, increase uptake of nutrients

and other substances by vegetation,

etc.). The reshaping of the ditch cannot

increase drainage beyond the original

project boundaries or expand the area

drained by the ditch as originally

designed (i.e., the capacity of the ditch

must be the same as originally designed

and it cannot drain additional wetlands

or other waters of the United States).

The permittee must notify the District

Engineer in accordance with the

‘‘Notification’’ general condition, if

material excavated during ditch

reshaping is sidecast into waters of the

United States. This NWP does not apply

to reshaping drainage ditches

constructed in uplands, since these

areas are not waters of the United States,

or to the maintenance of existing

drainage ditches to their original

dimensions and configuration, which

does not require a Section 404 permit

(see 33 CFR 323.4(a)(3)). 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 the reshaping and

maintenance of drainage ditches in

navigable waters of the United States,

which requires a Section 10 permit.

This NWP does not authorize stream

channelization or stream relocation

projects. (Section 404)

3. Maintenance Activities related to:

(i) 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, and the District Engineer

receives notification for all work other

than the replacement of a structure.

Minor deviations in the structure’s

configuration or filled area including

those due to changes in materials,

construction techniques, or current

construction codes or safety standards

which are necessary to make repair,

rehabilitation, or replacement are

permitted, provided the environmental

impacts resulting from such repair,

rehabilitation, or replacement are

minimal. Currently serviceable means

useable as is or with some maintenance,

but not so degraded as to essentially

require reconstruction. This nationwide

permit authorizes the repair,

rehabilitation, or replacement of those

structures destroyed or damaged by

storms, floods, fire or other discrete

events, provided the repair,
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36071

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. Maintenance dredging

and beach restoration are not authorized

by this nationwide permit.

(ii) Discharges of dredged or fill

material, including excavation, into any

waters of the United States to remove

accumulated sediments and debris in

the vicinity of existing structures (e.g.,

bridges, culverted road crossings, water

intake structures, etc.) and the

placement of new or additional rip rap

to protect the structure, provided the

permittee notifies the District Engineer

in accordance with the ‘‘Notification’’

general condition. The removal of

sediment is limited to the minimum

necessary to restore the waterway in the

immediate vicinity of the structure to

the approximate dimensions that

existed when the structure was built,

but cannot extend further than 200 feet

in any direction from the structure. The

placement of rip rap must be the

minimum necessary to protect the

structure, or to ensure the safety of the

structure. This NWP does not authorize

new stream channelization or stream

relocation projects. All excavated

materials must be deposited and

retained in an upland area unless

otherwise specifically approved by the

District Engineer under separate

authorization. Any bank stabilization

measures require a separate

authorization from the District Engineer.

(iii) Discharges of dredged or fill

material, including excavation, into

waters of the United States for the

restoration of upland areas damaged by

a storm, flood or other discrete event,

and minor dredging to remove

obstructions in a waterbody adjacent to

the upland, where such work requires

activities in a regulated water of the

United States, provided that the District

Engineer receives notification within 12

months of the date of the damage,

subject to the following criteria;

a. The extent of the proposed

restoration must be justified by a recent

topographic survey, or other evidence of

the pre-existing conditions. The

restoration of the damaged areas cannot

exceed the contours, or ordinary high

water mark, that existed prior to the

damage. The District Engineer retains

the right to determine the extent of the

pre-existing conditions, and the extent

of any restoration work;

b. Minor dredging to remove

obstructions from the adjacent

waterbody is limited to 50 cubic yards

below the plane of the ordinary high

water mark, and is limited to the degree

needed to restore the pre-existing

bottom contours of the waterbody. The

dredging may not be done primarily to

obtain fill for any restoration activities;

c. For activities affecting greater than 1⁄3 acre of waters of the United States,

the permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

d. The discharge of dredged or fill

material and all related work needed to

restore the upland is part of a single and

complete project;

e. This permit authorizes such work,

provided the District Engineer has been

notified as appropriate in accordance

with condition (3) within 12 months of

the date of the damage, and the work

has commenced, or is under contract to

commence, within 2 years of the date of

the damage;

f. This permit may not be used in

conjunction with NWP 18 or NWP 19;

g. This NWP cannot be used to

channelize a stream, and any work

authorized must not cause more than

minor changes to the hydraulic flow

characteristics of the stream, increase

flooding, or measurably degrade water

quality (See General Conditions 9 and

22); and

h. This permit may not be used to

reclaim historic lands lost, over an

extended period of time, to normal

erosion processes. (Sections 10 and 404)

7. Outfall Structures and

Maintenance. Activities related to: (i)

Construction of outfall structures and

associated intake structures where the

effluent from the outfall is authorized,

conditionally authorized, or specifically

exempted, or are otherwise in

compliance with regulations issued

under the National Pollutant Discharge

Elimination System program (Section

402 of the Clean Water Act), and (ii)

maintenance excavation, including

dredging, to remove accumulated

sediments blocking or restricting outfall

and intake structures, accumulated

sediments from small impoundments

associated with outfall and intake

structures, and accumulated sediments

from canals associated with outfall and

intake structures, provided that the

activity meets all of the following

criteria: a

a. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

b. The amount of excavated or

dredged material must be the minimum

necessary to restore the outfalls, intakes,

small impoundments, and canals to

original design capacities and design

configurations (i.e., depth and width);

c. The excavated or dredged material

is deposited and retained at an upland

site, unless otherwise approved by the

District Engineer under separate

authorization; and

d. Proper soil erosion and sediment

control measures are used to minimize

reentry of sediments into waters of the

United States.

The construction of intake structures

is not authorized by this NWP, unless

they are directly associated with an

outfall structure. For maintenance

excavation and dredging to remove

accumulated sediments, the notification

must include information regarding the

original design capacities and

configurations of the facility. (Sections

10 and 404)

12. Utility Activities. Discharges of

dredged or fill material into waters of

the United States and/or structures in,

over, or under navigable waters of the

United States for the following utility

activities:

(i) Utility lines: The construction or

maintenance of utility lines, including

outfall and intake structures and the

associated excavation, backfill, or

bedding for the utility lines, provided

there is no change in preconstruction

contours. A ‘‘utility line’’ is defined as

any pipe or pipeline for the

transportation of any gaseous, liquid,

liquefiable, or slurry substance, for any

purpose, and any cable, line, or wire for

the transmission for any purpose of

electrical energy, telephone, and

telegraph messages, and radio and

television communication (see Note 1,

below). Material resulting from trench

excavation may be temporarily sidecast

(up to three months) into waters of the

United States, provided that the

material is not placed in such a manner

that it is dispersed by currents or other

forces. The District Engineer may extend

the period of temporary side-casting not

to exceed a total of 180 days, where

appropriate. In wetlands, the top 6′′ to

12′′ of the trench should normally be

backfilled with topsoil from the trench.

Furthermore, the trench cannot be

constructed 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. This NWP also

includes the repair of existing utility

lines.

(ii) Electric or pumping substations:

The construction, maintenance, or

expansion of an electric or pumping

substation, provided the discharge does
36072 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

not result in the loss of greater than 1

acre of non-Section 10 waters of the

United States.

(iii) Foundations for overhead utility

line towers, poles, and anchors: The

construction or maintenance of

foundations for overhead utility lines,

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.

(iv) Access roads: The construction of

access roads for the construction and

maintenance of utility lines, including

overhead power lines, and substations is

authorized, provided the discharge does

not cause the loss of greater than 1 acre

of non-Section 10 waters of the United

States, excluding non-tidal waters

contiguous with Section 10 waters.

Access roads shall be the minimum

width necessary (see Note 2, below).

Access roads must be constructed so

that the length of the road minimizes

the adverse effects on waters of the

United States and at preconstruction

contours and elevations, or as near as

possible (e.g., at grade corduroy roads or

geotextile/gravel roads). Access roads

constructed above preconstruction

contours and elevations in waters of the

United States must be properly bridged

or culverted to maintain surface flows.

The term utility line does not include

activities which drain a water of the

United States, such as drainage tile or

french drains; however, it does apply to

pipes conveying drainage from another

area. For the purposes of this NWP, the

acreage of loss of waters of the United

States includes the filled area plus

waters of the United States that are

adversely affected by flooding,

excavation, or drainage as a result of the

project. However, the term ‘‘loss’’

applies only to waters of the United

States permanently affected by filling,

flooding, excavation, or drainage and

not to waters of the United States that

are temporarily affected by the work and

restored to preconstruction contours

and wetland conditions. Temporary

construction mats (e.g., timber, steel,

geotextile) used during construction and

removed upon completion of the work

are not included in the calculation of

permanent loss of waters of the United

States.

Mechanized landclearing necessary

for the installation and maintenance of

utility lines and the construction and

maintenance of electric and pumping

substations, foundations for overhead

utility lines, and access roads is

authorized, provided the cleared area is

kept to the minimum necessary and

preconstruction contours are

maintained as near as possible. The area

of waters of the United States that is

filled, excavated, or flooded must be

limited to the minimum necessary to

construct the utility line, substations,

foundations, and access roads. Excess

material must be removed to upland

areas immediately upon completion of

construction. 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).

Construction of access roads or the

construction or expansion of electric or

pumping substations in navigable

waters of the United States is not

authorized by this NWP.

Notification: The permittee must

notify the District Engineer in

accordance with the ‘‘Notification’’

general condition, if any of the

following criteria are met:

(a) Mechanized landclearing in a

forested wetland for the right-of-way;

(b) A Section 10 permit is required;

(c) The utility line in waters of the

United States, excluding overhead lines,

exceeds 500 feet;

(d) The utility line is placed within a

jurisdictional area (i.e., a water of the

United States), and it runs parallel to a

stream bed that is within that

jurisdictional area;

(e) Discharges associated with the

construction of electric or pumping

substations that result in the loss of

greater than 1⁄3 acre of non-tidal waters

of the United States; or

(f) Permanent access roads

constructed above grade in waters of the

United States for a distance of more

than 500 feet.

Note 1: 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; except

for pipes or pipelines used to transport

gaseous, liquid, liquefiable, or slurry

substances over navigable waters of the

United States, which 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 River and Harbor Act of

1899. However, any discharges of dredged or

fill material associated with such pipelines

will require a Corps permit under Section

404.

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 and

the area restored to preconstruction contours,

elevations, and wetland conditions.

Temporary access roads for construction may

be authorized by NWP 33. (Sections 10 and

404)

14. Linear Transportation Crossings.

Activities required for the construction,

expansion, modification or

improvement of linear transportation

crossings (e.g., highways, railways,

trails, airport runways, and taxiways) in

waters of the United States, including

wetlands, provided that the activity

meets the following criteria:

a. For public linear transportation

crossings, the discharge is limited to

non-tidal waters of the United States,

excluding non-tidal wetlands

contiguous to tidal waters, and does not

cause the loss of greater than 2 acres (1

acre)* of non-tidal waters of the United

States;

b. For private linear transportation

crossings in waters of the United States

or public linear transportation crossings

in tidal waters or in non-tidal wetlands

contiguous to tidal waters, the discharge

does not cause the loss of greater than

1⁄3 acre of waters of the United States,

including wetlands, and the length of

the fill for the crossing in waters of the

United States is limited to 200 linear

feet;

c. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition for

discharges into special aquatic sites,

including wetlands, or that cause the

loss of greater than 1⁄3 acre of waters of

the United States;

d. For public linear transportation

crossings, the notification must include

a mitigation proposal that will offset the

loss of waters of the United States;

e. For discharges in special aquatic

sites, including wetlands, the

notification must include a delineation

of the affected special aquatic sites;

f. The width of the fill is limited to

the minimum necessary for the crossing;

g. This NWP cannot be used to

channelize a stream, and any work

authorized must not cause more than

minor changes to the hydraulic flow

characteristics of the stream, increase

flooding, or measurably degrade water

quality (See General Conditions 9 and

22); and

h. The crossing is part of a single and

complete project for crossing a water of

the United States.

Some discharges for crossings may be

eligible for an exemption from the need

for a Section 404 permit (see 33 CFR

323.4). (Sections 10 and 404)

*Note: For the purposes of this proposed

modification to NWP 14, a discussion of

acreage threshold options being considered

for NWP 14 is provided in the preamble.

27. Stream and Wetland Restoration

Activities. Activities in waters of the

United States associated with the

restoration and enhancement of former

non-tidal wetlands and riparian areas,

the enhancement of degraded wetlands
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36073

and riparian areas, the creation of

wetlands and riparian areas, and the

restoration and enhancement of nonSection 10 streams and open water

areas; (i) on non-Federal public lands

and private lands, in accordance with

the terms and conditions of a binding

wetland enhancement, restoration or

creation agreement between the

landowner and the U.S. Fish and

Wildlife Service or the Natural

Resources Conservation Service (NRCS)

or voluntary wetland restoration,

enhancement, and creation actions

documented by the NRCS pursuant to

NRCS regulations; or (ii) on any Federal

land; or (iii) on reclaimed surface coal

mined lands, in accordance with a

Surface Mining Control and

Reclamation Act permit issued by the

Office of Surface Mining or the

applicable State agency. (The future

reversion does not apply to streams or

wetlands created, restored or enhanced

as mitigation for the mining impacts,

nor naturally due to hydrologic or

topographic features, nor for a

mitigation bank.); or (iv) on any public

or private land, provided the permittee

notifies the District Engineer in

accordance with the ‘‘Notification’’

general condition.

Such activities include, but are not

limited to, the removal of accumulated

sediments, the installation, removal and

maintenance of small water control

structures, dikes and berms; the

installation of current deflectors; the

enhancement, restoration, or creation of

riffle and pool stream structure; the

placement of in-stream habitat

structures; modifications of the stream

bed and/or banks to restore or create

stream meanders; the backfilling of

artificial channels and drainage ditches;

the removal of existing drainage

structures; the construction of small

nesting islands; the construction of open

water areas; activities needed to

reestablish vegetation, including

plowing or discing for seed bed

preparation; mechanized land-clearing

to remove undesirable vegetation; and

other related activities. This NWP

cannot be used to authorize activities for

the conversion of a stream to another

aquatic use, such as the creation of an

impoundment for waterfowl habitat.

This NWP cannot be used to channelize

a stream. This NWP does not authorize

the conversion of natural wetlands to

another aquatic use, such as creation of

waterfowl impoundments where a

forested wetland previously existed.

However, this NWP may be used to

relocate aquatic habitat types on the

project site, provided there are net gains

in aquatic resource functions and

values. For example, this NWP may

authorize the creation of an open water

impoundment in an emergent wetland,

provided the emergent wetland is

replaced by creating that wetland type

in the adjacent uplands.

Reversion. For enhancement,

restoration and creation projects

conducted under paragraphs (ii) and

(iv), 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 at that time

would be required for any reversion. For

restoration, enhancement and creation

projects conducted under paragraphs (i)

and (iii), 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 creation

activities) within five years after

expiration of a limited term wetland

restoration or creation agreement or

permit, even if the discharge occurs

after this NWP expires. The five year

reversion limit does not apply to

agreements without time limits reached

under paragraph (i). The prior condition

will be documented in the original

agreement or permit, and the

determination of return to prior

conditions will be made by the Federal

agency or appropriate State agency

executing the agreement or permit. Prior

to 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 back to its prior physical

condition, it will be subject to whatever

the Corps regulatory requirements will

be at that future date. Because projects

that would be authorized by this permit

are designed to enhance the aquatic

environment, mitigation will not be

required for the work. (Sections 10 and

404)

40. Agricultural Activities. Discharges

of dredged or fill material into non-tidal

waters of the United States, including

non-tidal wetlands, for the purpose of

improving agricultural production and

construction of building pads for farm

buildings. Activities authorized include

installation, placement, or construction

of drainage tiles, ditches, or levees;

mechanized land clearing, land leveling,

and similar activities, provided:

a. The Natural Resources

Conservation Service (NRCS) has made

a written notification based on an NRCS

certified wetland determination that the

activity qualifies for a minimal effect

exemption in accordance with the

provisions of the Food Security Act (16

U.S.C. 3801 et seq.) and the National

Food Security Act Manual (NFSAM)

and the discharge does not cause a loss

of greater than 1 acre of non-tidal

wetlands and no greater than 1⁄3 acre of

playas, prairie potholes, or vernal pools;

b. The discharge does not cause a loss

of greater than 3 acres of non-tidal

wetlands on a farm, using an index of

impact acreage as follows:

Farm Size

Maximum

acreage

loss authorized for wetlands on a

farm

Less than 15 acres ................... 1⁄4 acre.

15–25 acres .............................. 1⁄2 acre.

25–50 acres .............................. 3⁄4 acre.

50–100 acres ............................ 1 acre.

100–500 acres .......................... 2 acres.

Greater than 500 acres ............ 3 acres.

and the permittee submits an NRCS (for

USDA program participants and nonparticipants) or Corps (for USDA nonparticipants only) approved mitigation

plan fully offsetting wetland losses;

c. The discharge does not cause the

loss of greater than 1 acre of naturally

vegetated playas, prairie potholes, or

vernal pools, using an index of impact

acreage as follows:

Farm size

Maximum

acreage

loss authorized for

playas, prairie potholes,

and vernal

pools

Less than 25 acres ................... 1⁄4 acre.

25–100 acres ............................ 1⁄2 acre.

100–500 acres .......................... 3⁄4 acre.

Greater than 500 acres ............ 1 acre.

and the permittee submits an NRCS (for

USDA program participants and nonparticipants) or Corps (for USDA nonparticipants only) approved mitigation

plan fully offsetting wetland losses;

d. For construction of building pads

for farm buildings, the discharge does

not cause the loss of greater than 1 acre

of wetlands (not to include playas,

prairie potholes, and vernal pools) that

were in agricultural production prior to

December 23, 1985; or

e. Any activity in other waters of the

United States is limited to the relocation

of existing serviceable drainage ditches

and previously substantially

manipulated intermittent and small

perennial streams.

For the purposes of this NWP, the

acreage of loss of waters of the United

States includes the filled area plus

waters of the United States that are

adversely affected by flooding,
36074 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

excavation or drainage as a result of the

project. Also, authorized activities

involving excavation or drainage cannot

have the effect of adversely impacting

jurisdictional areas through flooding,

draining, or restricting the flow and

circulation of waters of the United

States, including wetlands, beyond the

acreage permitted. The acreage limits for

the above activities to improve

agriculture production are a cumulative

limit not to exceed each limit above nor

exceed a total of 3 acres per farm for the

duration of this nationwide permit (i.e.,

until reissuance or any revocation).

When this NWP is reissued it may be

used again on the same farm to

authorize activities for impacts not to

exceed the acreage thresholds

authorized in the reissuance. (The term

‘‘farm’’ refers to a land unit under one

ownership operated as a farm as

reported to the Internal Revenue

Service.) This NWP may not be used in

conjunction with any other NWP to

exceed the acreage limits listed in (a),

(b), (c) and (d) above for the purpose of

increasing acreage for agriculture

production. Regulated discharges

associated with the mitigation are

authorized and not calculated into the

overall acreage figure. Work in waters of

the United States not authorized by the

above provisions, may be authorized by

other NWPs (e.g., NWP 3—maintenance,

NWP 13—bank stabilization, and NWP

27—wetland restoration).

Notification: The permittee must

notify the District Engineer in

accordance with the ‘‘Notification’’

general condition for the loss of: (1)

Greater than 1⁄3 acre of non-tidal

wetlands, or (2) greater than 500 linear

feet of drainage ditches and previously

substantially manipulated intermittent

and small perennial streams. The

appropriate Federal and State agencies

will be notified for the loss of greater

than 1 acre of non-tidal wetlands, in

accordance with paragraph (e) of

General Condition 13. The notification

must also include any past use of this

NWP on the farm. For discharges in

special aquatic sites, including

wetlands, the notification must include

a delineation of the affected area.

This NWP does not affect, or

otherwise regulate, discharges

associated with agricultural activities

when the discharge qualifies for an

exemption under Section 404 of the

Clean Water Act (CWA) (33 CFR Part

323.4) even though a minimal effect/

mitigation determination may be

required by the NRCS. (Section 404)

Note: For the purposes of this proposed

modification to NWP 40, a discussion of

acreage limit options, the types of waters

affected in paragraph (b), and the definition

of single and complete project, is provided in

the preamble.

C. Nationwide Permit General

Conditions

The following general conditions

must be followed in order for any

authorization by a NWP to be valid:

1. Navigation. No activity may cause

more than a minimal adverse effect on

navigation.

2. Proper Maintenance. Any structure

or fill authorized shall be properly

maintained, including maintenance to

ensure public safety.

3. 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.

4. Aquatic Life Movements. No

activity may substantially disrupt the

movement of those species of aquatic

life indigenous to the waterbody,

including those species which normally

migrate through the area, unless the

activity’s primary purpose is to

impound water.

5. Equipment. Heavy equipment

working in wetlands must be placed on

mats, or other measures must be taken

to minimize soil disturbance.

6. Regional and Case-by-Case

Conditions. The activity must comply

with any regional conditions which may

have been added by the division

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

any case specific conditions added by

the Corps or by the State or tribe in its

section 401 water quality certification.

7. Wild and Scenic Rivers. No activity

may occur in a component of the

National Wild and Scenic River System;

or in a river officially designated by

Congress as a ‘‘study river’’ for possible

inclusion in the system, while the river

is in an official study status; unless the

appropriate Federal agency, with direct

management responsibility for such

river, has determined in writing that the

proposed activity will not adversely

effect the Wild and Scenic River

designation, or study status. Information

on Wild and Scenic Rivers may be

obtained from the appropriate Federal

land management agency in the area

(e.g., National Park Service, U.S. Forest

Service, Bureau of Land Management,

U.S. Fish and Wildlife Service.)

8. Tribal Rights. No activity or its

operation may impair reserved tribal

rights, including, but not limited to,

reserved water rights and treaty fishing

and hunting rights.

9. Water Quality. In certain States and

tribal lands an individual 401 water

quality certification must be obtained or

waived (See 33 CFR 330.4(c)). For NWPs

12, 14, 17, 18, 21, 32, 40, A, B, C, D, and

E where the State or tribal 401

certification (either generically or

individually) does not require/approve a

water quality management plan, the

permittee must include design criteria

and techniques that provide for

protection of aquatic resources. The

project must include a method for storm

water management that minimizes

degradation of the downstream aquatic

system, including water quality. To the

maximum extent practicable, a

vegetated buffer zone (including

wetlands, uplands, or both) adjacent to

the river, stream, or other open

waterbody must be established and

maintained, if the project occurs in the

vicinity of such an open waterbody. The

Corps district will determine the proper

width of the buffer and in which cases

it will be required.

10. Coastal Zone Management. In

certain States, an individual State

coastal zone management consistency

concurrence must be obtained or waived

(see Section 330.4(d)).

11. Endangered Species.

(a) No activity is authorized under

any NWP which is likely to jeopardize

the continued existence of a threatened

or endangered species or a species

proposed for such designation, as

identified under the Federal Endangered

Species Act, or which is likely to

destroy or adversely modify the critical

habitat of such species. Non-federal

permittees shall notify the District

Engineer if any listed species or critical

habitat might be affected or is in the

vicinity of the project, and shall not

begin work on the activity until notified

by the District Engineer that the

requirements of the Endangered Species

Act have been satisfied and that the

activity is authorized.

(b) Authorization of an activity by a

nationwide permit does not authorize

the ‘‘take’’ of a threatened or endangered

species as defined under the Federal

Endangered Species Act. 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. Fish and Wildlife Service

or the National Marine Fisheries

Service, both lethal and non-lethal

‘‘takes’’ of protected species are in

violation of the Endangered Species Act.

Information on the location of

threatened and endangered species and

their critical habitat can be obtained

directly from the offices of the U.S. Fish

and Wildlife Service and National

Marine Fisheries Service or their world
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36075

wide web pages at http://www.fws.gov/

∼r9endspp/endspp.html and http://

kingfish.spp.nmfs.gov/tmcintyr/

protlres.html#ES and Recovery,

respectively.

12. Historic Properties. No activity

which may affect historic properties

listed, or eligible for listing, in the

National Register of Historic Places is

authorized, until the DE has complied

with the provisions of 33 CFR Part 325,

Appendix C. The prospective permittee

must notify the District Engineer if the

authorized activity may affect any

historic properties listed, determined to

be eligible, or which the prospective

permittee has reason to believe may be

eligible for listing on the National

Register of Historic Places, and shall not

begin the activity until notified by the

District Engineer that the requirements

of the National Historic Preservation Act

have been satisfied and that the activity

is authorized. Information on the

location and existence of historic

resources can be obtained from the State

Historic Preservation Office and the

National Register of Historic Places (see

33 CFR 330.4(g)).

13. Notification.

(a) Timing: Where required by the

terms of the NWP, the prospective

permittee must notify the District

Engineer with a Pre-Construction

Notification (PCN) as early as possible

and shall not begin the activity:

(1) Until notified by the District

Engineer that the activity may proceed

under the NWP with any special

conditions imposed by the District or

Division engineer; or

(2) If notified by the District or

Division engineer that an individual

permit is required; or

(3) Unless 30 days have passed from

the District Engineer’s receipt of the

notification and the prospective

permittee has not received notice from

the District or Division Engineer.

Subsequently, the permittee’s right to

proceed under the NWP may be

modified, suspended, or revoked only in

accordance with the procedure set forth

in 33 CFR 330.5(d)(2).

(b) Contents of Notification: The

notification must be in writing and

include the following information:

(1) Name, address and telephone

numbers of the prospective permittee;

(2) Location of the proposed project;

(3) Brief description of the proposed

project; the project’s purpose; direct and

indirect adverse environmental effects

the project would cause; any other

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

individual permit(s) used or intended to

be used to authorize any part of the

proposed project or any related activity;

and

(4) For NWPs 12, 14, 18, 21, 29, 34,

38, A, B, C, D, and F, the PCN must also

include a delineation of affected special

aquatic sites, including wetlands,

vegetated shallows, (e.g., submerged

aquatic vegetation, seagrass beds), and

riffle and pool complexes (see paragraph

13(f));

(5) For NWP 7—Outfall Structures

and Maintenance, the PCN must include

information regarding the original

design capacities and configurations of

those areas of the facility where

maintenance dredging or excavation is

proposed.

(6) For NWP 12—Utility Activities,

where the proposed utility line is

constructed or installed in navigable

waters of the United States (i.e., Section

10 waters), a copy of the PCN must be

sent to the National Oceanic

Atmospheric Administration, National

Ocean Service, for charting the utility

line to protect navigation.

(7) For NWP 21—Surface Coal Mining

Activities, the PCN must include an

OSM or State approved mitigation plan.

(8) For NWP 29—Single-Family

Housing, the PCN must also include:

(i) Any past use of this NWP by the

individual permittee and/or the

permittee’s spouse;

(ii) A statement that the single-family

housing activity is for a personal

residence of the permittee;

(iii) A description of the entire parcel,

including its size, and a delineation of

wetlands. For the purpose of this NWP,

parcels of land measuring 0.5 acre or

less will not require a formal on-site

delineation. However, the applicant

shall provide an indication of where the

wetlands are and the amount of

wetlands that exists on the property. For

parcels greater than 0.5 acre in size, a

formal wetland delineation must be

prepared in accordance with the current

method required by the Corps. (See

paragraph 13(f));

(iv) A written description of all land

(including, if available, legal

descriptions) owned by the prospective

permittee and/or the prospective

permittee’s spouse, within a one mile

radius of the parcel, in any form of

ownership (including any land owned

as a partner, corporation, joint tenant,

co-tenant, or as a tenant-by-the-entirety)

and any land on which a purchase and

sale agreement or other contract for sale

or purchase has been executed;

(9) For NWP 31—Maintenance of

Existing Flood Control Projects, the

prospective permittee must either notify

the District Engineer with a PreConstruction Notification (PCN) prior to

each maintenance activity or submit a

five year (or less) maintenance plan. In

addition, the PCN must include all of

the following:

(i) Sufficient baseline information so

as to identify the approved channel

depths and configurations and existing

facilities. Minor deviations are

authorized, provided that the approved

flood control protection or drainage is

not increased;

(ii) A delineation of any affected

special aquatic sites, including

wetlands; and,

(iii) Location of the dredged material

disposal site.

(10) For NWP 33—Temporary

Construction, Access, and Dewatering,

the PCN must also include a restoration

plan of reasonable measures to avoid

and minimize adverse effects to aquatic

resources.

(11) For NWPs A and B, the PCN must

also include a written statement to the

District Engineer detailing why the

discharge must occur in waters of the

United States and additional avoidance

or minimization cannot be achieved.

(12) For NWP B—Master Planned

Development Activities, the PCN must

also include:

(i) a wetland assessment utilizing a

functional assessment approach

approved by the District Engineer;

(ii) a mitigation proposal that will

offset the loss of waters of the United

States; and

(iii) evidence of deed restrictions,

protective covenants, land trusts, or

other means of conservation and

preservation for vegetated buffers (both

wetland and/or upland) to open water

and any existing wetlands, as well as

any wetlands restored, enhanced, or

created as part of the project.

(13) For NWP C-Stormwater

Management Facilities, the PCN must

include, for the construction of

stormwater management facilities, a

mitigation proposal to offset losses of

waters of the United States.

(14) For NWPs E-Mining Activities,

the PCN must include a description of

all waters of the United States impacted

by the project and a reclamation plan.

(c) Form of Notification: The standard

individual permit application form

(Form ENG 4345) may be used as the

notification but must clearly indicate

that it is a PCN and must include all of

the information required in (b) (1)-(7) of

General Condition 13. A letter

containing the requisite information

may also be used.

(d) District Engineer’s Decision: In

reviewing the pre-construction

notification for the proposed activity,

the District Engineer will determine

whether the activity authorized by the

NWP will result in more than minimal

individual or cumulative adverse
36076 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

environmental effects or may be

contrary to the public interest. The

prospective permittee may, optionally,

submit a proposed mitigation plan with

the pre-construction notification to

expedite the process and the District

Engineer will consider any optional

mitigation the applicant has included in

the proposal in determining whether the

net adverse environmental effects of the

proposed work are minimal. If the

District Engineer determines that the

activity complies with the terms and

conditions of the NWP and that the

adverse effects on the aquatic

environment are minimal, the District

Engineer will notify the permittee and

include any conditions the District

Engineer deems necessary.

Any mitigation proposal must be

approved by the District Engineer prior

to commencing work. If the prospective

permittee elects to submit a mitigation

plan, the District Engineer will

expeditiously review the proposed

mitigation plan, but will not commence

a second 30-day notification procedure.

If the net adverse effects of the project

(with the mitigation proposal) are

determined by the District Engineer to

be minimal, the District Engineer will

provide a timely written response to the

applicant stating that the project can

proceed under the terms and conditions

of the nationwide permit.

If the District Engineer determines

that the adverse effects of the proposed

work are more than minimal, then he

will notify the applicant either: (1) that

the project does not qualify for

authorization under the NWP and

instruct the applicant on the procedures

to seek authorization under an

individual permit; (2) that the project is

authorized under the NWP subject to

the applicant’s submitting a mitigation

proposal that would reduce the adverse

effects to the minimal level; or (3) that

the project is authorized under the NWP

with specific modifications or

conditions.

(e) Agency Coordination: The District

Engineer will consider any comments

from Federal and State agencies

concerning the proposed activity’s

compliance with the terms and

conditions of the NWPs and the need for

mitigation to reduce the project’s

adverse environmental effects to a

minimal level.

For NWPs A, B, C, E, and 40, where

the loss of waters of United States is

greater than 1 acre, and for NWPs 14,

21, 29, 33, 37, and 38, the District

Engineer will, upon receipt of a

notification, provide immediately, e.g.,

facsimile transmission, overnight mail

or other expeditious manner, a copy to

the appropriate offices of the Fish and

Wildlife Service, State natural resource

or water quality agency, EPA, State

Historic Preservation Officer (SHPO),

and, if appropriate, the National Marine

Fisheries Service. For NWP 40, where

the activity results in the loss of greater

than 1⁄3 acre of playas, prairie potholes,

or vernal pools, the District Engineer

will, upon receipt of notification,

provide immediately, a copy of the

notification to the appropriate office of

the U.S. Fish and Wildlife Service. With

the exception of NWP 37, these agencies

will then have 5 calendar days from the

date the material is transmitted to

telephone or fax the District Engineer

notice that they intend to provide

substantive, site-specific comments. If

so contacted by an agency, the District

Engineer will wait an additional 10

calendar days before making a decision

on the notification. The District

Engineer will fully consider agency

comments received within the specified

time frame, but will provide no

response to the resource agency. The

District Engineer will indicate in the

administrative record associated with

each notification that the resource

agencies’ concerns were considered.

Applicants are encouraged to provide

the Corps multiple copies of

notifications to expedite agency

notification.

(f) Wetlands Delineations: Wetland

delineations must be prepared in

accordance with the current method

required by the Corps. For NWP 29 see

paragraph (b)(6)(iii) for parcels less than

0.5 acres in size. The permittee may ask

the Corps to delineate the special

aquatic site. There may be some delay

if the Corps does the delineation.

Furthermore, the 30-day period will not

start until the wetland delineation has

been completed and submitted to the

Corps, where appropriate.

(g) Mitigation: Factors that the District

Engineer will consider when

determining the acceptability of

appropriate and practicable mitigation

necessary to offset all impacts that are

more than minimal include, but are not

limited to:

(i) To be practicable, the mitigation

must be available and capable of being

done considering costs, existing

technology, and logistics in light of the

overall project purposes;

(ii) To the extent appropriate,

permittees should consider mitigation

banking and other forms of mitigation

including contributions to wetland trust

funds, ‘‘in lieu fees’’ to non-profit land

restoration and stewardship

organizations, State or county natural

resource management agencies, where

such fees contribute to the restoration,

creation, replacement, enhancement, or

preservation of wetlands. Furthermore,

examples of mitigation that may be

appropriate and practicable include but

are not limited to: reducing the size of

the project; establishing wetland or

upland buffer zones to protect aquatic

resource values; and replacing the loss

of aquatic resource values by creating,

restoring, enhancing, or preserving

similar functions and values. In

addition, mitigation must address

wetland impacts, such as functions and

values, and cannot be simply used to

offset the acreage of wetland losses that

would occur in order to meet the

acreage limits of some of the NWPs (e.g.,

for NWP 14, 0.5 acre of wetlands cannot

be created to change a 0.75-acre loss of

wetlands to a 0.25 acre loss; however,

0.5 created acres can be used to reduce

the impacts of a 0.3-acre loss.).

14. Compliance Certification. Every

permittee who has received a

Nationwide permit verification from the

Corps will submit a signed certification

regarding the completed work and any

required mitigation. The certification

will be forwarded by the Corps with the

authorization letter and will include: a.

A statement that the authorized work

was done in accordance with the Corps

authorization, including any general or

specific conditions; b. A statement that

any required mitigation was completed

in accordance with the permit

conditions; c. The signature of the

permittee certifying the completion of

the work and mitigation.

15. Multiple Use of Nationwide

Permits. In any case where any NWP

number 12 through 40 and any NWP A

through F is combined with any other

NWP number 12 through 40 and NWP

A through F, as part of a single and

complete project, the permittee must

notify the District Engineer in

accordance with paragraphs a, b, and c

of the ‘‘Notification’’ General Condition

number 13. Any NWP number 1 through

11 may be combined with any other

NWP without notification to the Corps,

unless notification is otherwise required

by the terms of the NWPs. As provided

at 33 CFR 330.6(c) two or more different

NWPs can be combined to authorize a

single and complete project. However,

the same NWP cannot be used more

than once for a single and complete

project.

16. Subdivisions. Discharges in any

real estate subdivision created or

subdivided after October 5, 1984, which

would cause the aggregate total loss of

waters of the United States in said

subdivision to exceed 3 acres under

NWP A or 10 acres under NWP B, is not

authorized by this NWP unless the

District Engineer exempts a particular

subdivision or parcel by making a
Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices 36077

written determination that the

individual and cumulative adverse

environmental effects would be

minimal, high quality wetlands would

not be adversely affected, and there

would be an overall benefit to the

aquatic environment. If an exemption is

established for a subdivision,

subsequent development by individual

property owners may proceed using

either NWP A or B, as appropriate. For

purposes of this condition, the term

‘‘real estate subdivision’’ shall be

interpreted to include circumstances

where a landowner or developer divides

a tract of land into smaller parcels for

the purpose of selling, conveying,

transferring, leasing, or developing said

parcels. This would include the entire

area of a residential, commercial, or

other real estate subdivision, including

all parcels and parts thereof.

17. Water Supply Intakes. No activity,

including structures and work in

navigable waters of the United States or

discharges of dredged or fill material,

may occur in the proximity of a public

water supply intake except where the

activity is for repair of the public water

supply intake structures or adjacent

bank stabilization.

18. Shellfish Production. No activity,

including structures and work in

navigable waters of the United States or

discharges of dredged or fill material,

may occur in areas of concentrated

shellfish production, unless the activity

is directly related to a shellfish

harvesting activity authorized by NWP

4.

19. Suitable Material. No activity,

including structures and work in

navigable waters of the United States or

discharges of dredged or fill material,

may consist of unsuitable material (e.g.,

trash, debris, car bodies, asphalt, etc.,)

and material used for construction or

discharged must be free from toxic

pollutants in toxic amounts (see Section

307 of the Clean Water Act).

20. Mitigation. Activities, including

structures and work in navigable waters

of the United States or discharges of

dredged or fill material into waters of

the United States, must be minimized or

avoided to the maximum extent

practicable at the project site (i.e., onsite). Furthermore, the District Engineer

will require restoration, creation,

enhancement, or preservation of other

aquatic resources in order to offset the

authorized impacts, at least to the extent

that adverse environmental effects to the

aquatic environment are minimal. An

important element of any mitigation

plan for projects in or near streams or

other open waters is the requirement of

vegetated buffers (wetland, upland, or

both) adjacent to the open water areas.

21. Spawning Areas. Activities,

including structures and work in

navigable waters of the United States or

discharges of dredged or fill material, in

spawning areas during spawning

seasons must be avoided to the

maximum extent practicable. Activities

that physically destroy (e.g., excavate or

fill) an important spawning area are not

authorized.

22. Management of Water Flows: To

the maximum extent practicable, the

project must be designed to maintain

pre-construction downstream flow

conditions (e.g., location, capacity, and

flow rates). Furthermore, the project

must not permanently restrict or impede

the passage of normal or expected high

flows (unless the primary purpose of the

fill is to impound waters) and the

structure or discharge of dredged or fill

material must withstand expected high

flows. The project must provide, to the

maximum extent practicable, for

retaining excess flows from the site and

for establishing flow rates from the site

similar to pre-construction conditions.

To minimize downstream impacts, such

as flooding or erosion, and upstream

impacts, such as back-up flooding, the

project must not, to the maximum

extent practicable, increase water flows

from the site, relocate water, or redirect

flow beyond pre-construction

conditions.

23. Adverse Effects from

Impoundments. If the activity, including

structures and work in navigable waters

of the United States or discharge of

dredged or fill material, creates an

impoundment of water, adverse effects

on the aquatic system caused by the

accelerated passage of water and/or the

restriction of its flow shall be

minimized to the maximum extent

practicable.

24. Waterfowl Breeding Areas.

Activities, including structures and

work in navigable waters of the United

States or discharges of dredged or fill

material, into breeding areas for

migratory waterfowl must be avoided to

the maximum extent practicable.

25. Removal of Temporary Fills. Any

temporary fills must be removed in their

entirety and the affected areas returned

to their preexisting elevation.

D. Further Information

1. District engineers have authority to

determine if an activity complies with

the terms and conditions of an NWP.

2. NWPs do not obviate the need to

obtain other Federal, State, or local

permits, approvals, or authorizations

required by law.

3. NWPs do not grant any property

rights or exclusive privileges.

4. NWPs do not authorize any injury

to the property or rights of others.

5. NWPs do not authorize interference

with any existing or proposed Federal

project.

E. Definitions

1. Aquatic bench: Aquatic benches are

those shallow areas around the edge of

a permanent pool stormwater

management facility that support

aquatic vegetation, both submerged and

emergent.

2. Best management practices: Best

Management Practices (BMPs) are

policies, practices, procedures, or

structures implemented to mitigate the

adverse impacts on surface water

quality resulting from development.

BMPs are categorized as structural or

non-structural. A BMP policy may affect

the limits on a development.

3. Channelized stream: A channelized

stream is a stream that has been

manipulated to increase the rate of

water flow through the stream channel.

Manipulation may include deepening,

widening, straightening, armoring, and

other activities that change the stream

cross-section and other aspects of

channel geometry in an effort to

increase water conveyance. A

channelized stream remains a water of

the United States despite the alterations.

For the purposes of the NWPs, a

channelized stream is not considered to

be a drainage ditch.

4. Contiguous wetland: A contiguous

wetland is a wetland that is connected

by surface waters to other waters of the

United States. For example, in tidal

ecosystems, contiguous wetlands may

be either tidal or non-tidal. For the

purposes of the NWPs, contiguous

wetlands in tidal ecosystems extend in

the same direction as the ebb and flow

of the tide; wetlands that are upstream

(i.e., either upstream on the main tidal

channel or upstream on any linear

aquatic system with a defined channel

that enters the contiguous wetland) of

tidal waters are not considered to be

contiguous. Contiguous wetlands in

non-tidal systems are normally

contiguous to the nearest open water of

the United States and perpendicular to

a tangent of the OHWM of that open

water. Wetlands contiguous with other

waters of the United States are adjacent

to those waters, but wetlands adjacent to

those waters are not necessarily

contiguous, as they may be separated

from waters of the United States by

berms, levees, roads, etc.

5. Drainage ditch: A linear excavation

or depression constructed for the

purpose of conveying surface runoff or

groundwater from one area to another.

An ‘‘upland drainage ditch’’ is a
36078 Federal Register / Vol. 63, No. 126 /Wednesday, July 1, 1998 / Notices

drainage ditch constructed entirely in

uplands (i.e., not waters of the United

States) and is not a water of the United

States, unless it becomes tidal or

otherwise extends the ordinary high

water line of existing waters of the

United States. Drainage ditches

constructed in waters of the United

States (e.g., by excavating wetlands)

remain waters of the United States even

though they are heavily manipulated to

increase drainage. The term ‘‘drainage

ditch’’ does not include channelized

streams. A drainage ditch may be

constructed in uplands or wetlands.

6. Ephemeral stream: An ephemeral

stream has flowing water only during,

and for a short duration after, storm

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.

7. Farm: A land unit under one

ownership operated as a farm as

reported to the Internal Revenue

Service.

8. Intermittent stream: An

intermittent stream has flowing water

during certain times of the year. When

the stream bed is located below the

water table, groundwater is the primary

source of 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.

9. Loss of waters of the United States:

Waters of the United States that include

the filled area and other waters that are

adversely affected by flooding,

excavation, or drainage as a result of the

regulated activity. The acreage of loss of

waters of the United States is the

threshold measurement of the impact to

existing 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 values.

The loss of stream bed includes the

linear feet of stream that is filled or

excavated.

10. Noncontiguous wetland: A

noncontiguous wetland is a wetland

that is not connected by surface waters

to other waters of the United States, or

is part of a linear aquatic system with

a defined channel to the otherwise

contiguous wetland. Noncontiguous

wetlands may be adjacent to other

waters of the United States, but a direct

connection to other waters of the United

States is lacking. For example, a

depressional wetland located on a

floodplain that is separated by a narrow

band of uplands from the river is a

noncontiguous wetland, but still

adjacent to that river due to periodic

overbank flooding that is a source of

hydrology for that wetland.

Noncontiguous wetlands also include

those wetlands that are tributary to the

contiguous wetland or its open water

area, where the tributary has a defined

channel for water flow.

11. Non-tidal wetland: A non-tidal

wetland is a wetland (i.e., a water of the

United States) 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).

12. Perennial stream: A perennial

stream has flowing water year-round

during a typical year. The stream bed is

located below the water table 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.

13. Riffle and pool complex: Riffle

and pool complexes typically occur in

steep gradient sections of perennial

streams and consist of alternating

stream segments characterized by: 1) the

rapid of movement of water over a

coarse substrate (e.g., gravel or cobble)

with shallow water and 2) the slower

movement of water over a finer

substrate (e.g., sand or silt) with deeper

water.

14. 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 negative impacts of

urbanization.

15. Stormwater management

facilities: Stormwater management

facilities are those facilities, including

but not limited to, stormwater retention

and detention ponds and BMPs, 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.

16. Tidal wetland: A tidal wetland is

a wetland (i.e., a 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 (i.e., spring high tide line) and are

inundated by tidal waters at least two

times per month, during spring high

tides.

17. 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.

18. Waterbody: A waterbody is any

area that in a normal year has water

flowing or standing above ground to the

extent that evidence of an ordinary high

water mark is established.

[FR Doc. 98–17399 Filed 6–30–98; 8:45 am]

BILLING CODE 3710–92–P