`[Federal Register Volume 63, Number 126 (Wednesday, July 1, 1998)]
[Notices]
[Pages 36040-36078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17399]


      

[[Page 36039]]

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Part II





Department of Defense





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Department of the Army, Corps of Engineers



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Proposal To Issue and Modify Nationwide Permits; Notice

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

[[Page 36040]]



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.

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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 activity-specific, 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

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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

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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 case-by-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

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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 well-informed 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

[[Page 36044]]

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) non-Section 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 non-jurisdictional 
areas separating those waters. Wetlands contiguous to Section 10 waters 
may be either tidal or non-tidal.
    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 non-tidal 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,

[[Page 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

[[Page 36046]]

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, non-commercial, 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

[[Page 36047]]

[GRAPHIC] [TIFF OMITTED] TN01JY98.000



BILLING CODE 3710-92-C

[[Page 36048]]

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;

[[Page 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

[[Page 36050]]

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

[[Page 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:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                        Parcel Size                              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 Corps-
only 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

[[Page 36052]]

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:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                        Parcel size                              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

[[Page 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

[[Page 36054]]

recreational facilities are defined as low-impact 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, non-commercial 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

[[Page 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 cross-section 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

[[Page 36056]]

(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.

[[Page 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

[[Page 36058]]

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 case-by-
case special conditions such as time-of-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

[[Page 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 
scrub-shrub 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

[[Page 36060]]

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 controlled-access 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

[[Page 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:

------------------------------------------------------------------------
                                                               Maximum  
                                                            acreage loss
                                                             authorized 
                         Farm Size                          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 non-tidal 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:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                                                                 loss   
                                                              authorized
                         Farm size                           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

[[Page 36062]]

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 non-tidal 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)),

[[Page 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,

[[Page 36064]]

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

[[Page 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

[[Page 36066]]

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 
on-site and off-site impacts of the discharge. For example, the 
location of the home may need to be adjusted on-site 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,

[[Page 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*:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                        Parcel size                              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

[[Page 36068]]

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*:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                        Parcel size                              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 non-tidal 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

[[Page 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 
non-Section 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)

[[Page 36070]]

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 non-Section 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 non-Section 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,

[[Page 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

[[Page 36072]]

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

[[Page 36073]]

and riparian areas, the creation of wetlands and riparian areas, and 
the restoration and enhancement of non-Section 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:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                                                                 loss   
                         Farm Size                            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 
non-participants) or Corps (for USDA non-participants 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:

------------------------------------------------------------------------
                                                               Maximum  
                                                               acreage  
                                                                 loss   
                                                              authorized
                         Farm size                           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 
non-participants) or Corps (for USDA non-participants 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,

[[Page 36074]]

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

[[Page 36075]]

wide web pages at http://www.fws.gov/r9endspp/endspp.html 
and http://kingfish.spp.nmfs.gov/tmcintyr/prot__res.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 
Pre-Construction 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

[[Page 36076]]

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

[[Page 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., on-site). 
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

[[Page 36078]]

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`