17456 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 

Draft CD in the Federal Register for 

public review. The document will also 

be placed at public libraries in the 

vicinity of the project area and 

distributed to the concerned resource 

agencies and the public who has 

provided comment on the Draft SEIS/ 

SEIR. Revisions to the text made in the 

Final SEIS/SEIR are marked with 

underline and the deleted text is marked 

with strikeout. 

This Final SEIS/SEIR describes the 

affected resources and evaluates the 

potential impacts to those resources as 

a result of the Proposed Action and 

alternatives. The purpose of the 

Proposed Action is to dispose of up to 

3.0 million cubic yards of dredge 

material required to complete the 

Channel Deepening Project and to 

beneficially reuse the dredge material 

within the Port of Los Angeles (Port). 

(C) This announcement also serves as 

the Public Notice/Notice of Availability 

for the Section 404 Permit under the 

Clean Water Act (CWA). An application 

has been received for a Department of 

the Army permit for the activity 

described herein. The Corps is 

considering an application submitted by 

the LAHD for a permit, in accordance 

with Section 404 of the CWA, Section 

10 of the Rivers and Harbors Act, and 

Section 103 of the Marine Protection, 

Research, and Sanctuaries Act, to 

complete dredging activities outside of 

the Federal Channel and placement of 

the dredge material in waters of the 

United States in the Port of Los Angeles 

and at designated ocean disposal sites 

(LA–2 and LA–3). 

This SEIS/SEIR will be used by the 

Corps as part of their application review 

process. The Corps and the LAHD 

independently determined under the 

National Environmental Policy Act 

(NEPA) and the California 

Environmental Quality Act (CEQA), 

respectively, that there were potential 

significant environmental impacts 

associated with the proposed action, 

and an Environmental Impact Statement 

and Environmental Impact Report was 

required. 

1. Authorization 

By Water Resources Development Act 

of (WRDA) 2000, the Port of Los Angeles 

Channel Deepening Project was 

authorized for construction. The project 

is a continuation of the navigation 

channel optimization that began with 

the 1994 Deep Draft Navigation 

Improvement (DDNI) project. 

2. Background 

The proposed project area is located 

at the Port of Los Angeles, California. 

This SEIS/SEIR is a supplement to the 

2000 SEIS/SEIR that was prepared for 

the Channel Deepening Project, which 

was a supplement to the 1998 Channel 

Deepening Project EIR and the 1992 

Deep Draft Navigation Improvements 

Project EIS/EIR the modifications 

required to complete disposal of 

dredged material from the authorized 

project. This SEIS/SEIR addresses 

impacts associated with providing 

additional disposal capacity of 

approximately 3 mcy required to 

complete the Channel Deepening 

Project. Additional disposal capacity is 

required to complete the deepening of 

the navigation channel and berthing 

areas to –53 feet Mean Lower Low Water 

(MLLW) at container terminals along the 

deepened channel and the removal of 

dredge material that was temporarily 

used as surcharge at the Southwest Slip. 

This project meets a public need for safe 

and efficient commercial navigation. 

3. Availability of the Final SEIS/SEIR 

and Draft CD 

The Final SEIS/SEIR and the Draft CD 

for the Proposed Action are being 

distributed directly to agencies, 

organizations, and interested groups and 

persons for comment during the 30-day 

formal review period in accordance 

with Section 1506.10 of the Council on 

Environmental Quality NEPA 

Regulations and Section 176 of the 

Clean Air Act for CD, and Section 404 

of Clean Water Act. During the 30-day 

public review period, which begins on 

April 17, 2009 and ends on May 17, 

2009, the Final SEIS/SEIR is available 

for general public review at the 

following locations: 

U.S. Army Corps of Engineers, Los 

Angeles District, Environmental 

Resources Branch, 915 Wilshire Blvd., 

14th Floor, Los Angeles, CA 90053 

Los Angeles Public Library, San Pedro 

Branch, 921 South Gaffey Street, San 

Pedro, CA 90731 

Los Angeles Public Library, Central 

Branch, 630 West 5th Street, Los 

Angeles, CA 90071 

Port of Los Angeles, Environmental 

Management Division, 425 South 

Palos Verdes Street, San Pedro, CA 

90731 

Los Angeles Public Library, Wilmington 

Branch, 1300 North Avalon 

Boulevard, Wilmington, CA 90744 

Dated: April 1, 2009. 

Thomas H. Magness, 

Colonel, U.S. Army, District Commander. 

[FR Doc. E9–8614 Filed 4–14–09; 8:45 am] 

BILLING CODE 3710–KF–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

Public Notice Concerning Nationwide 

Permit 46 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Notice. 

SUMMARY: In response to a memorandum 

opinion issued on March 26, 2008, in 

litigation relating to Nationwide Permit 

(NWP) 46, the U.S. Army Corps of 

Engineers (Corps) is removing a 

sentence in the preamble that was 

published in the March 12, 2007, final 

notice for the reissuance of the 

Nationwide Permits and replacing that 

sentence and providing additional 

clarification. The preamble language at 

issue concerns when a pre-construction 

notification is required in connection 

with NWP 46, and we are soliciting 

comments on the removed sentence, the 

replacement sentences, and the 

additional clarification provided in this 

notice. The Corps is not proposing any 

changes to the terms and conditions of 

NWP 46. 

DATES: Submit comments by May 15, 

2009. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2009–0019, by any of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: 

david.b.olson@usace.army.mil. Include 

the docket number, COE–2009–0019, in 

the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

ATTN: CECW–CO (David B. Olson), 441 

G Street, NW., Washington, D.C. 20314– 

1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2009–0019. All 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the commenter indicates that the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI, or otherwise 

protected, through regulations.gov or email. The regulations.gov Web site is an 

anonymous access system, which means 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 17457 

we will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an e-mail directly to the Corps 

without going through regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, we recommend that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If we cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, we may not be able to 

consider your comment. Electronic 

comments should avoid the use of any 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. All documents in 

the docket are listed. Although listed in 

the index, some information is not 

publicly available, such as CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. 

FOR FURTHER INFORMATION CONTACT: Mr. 

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

SUPPLEMENTARY INFORMATION: In the 

March 12, 2007, issue of the Federal 

Register (72 FR 11092), the U.S. Army 

Corps of Engineers (Corps) issued 

Nationwide Permit (NWP) 46, a new 

NWP that authorizes discharges of 

dredged or fill material into non-tidal 

ditches that are: (1) Constructed in 

uplands, (2) receive water from an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, (3) divert water to an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, and (4) are determined to be 

waters of the United States. To be 

authorized by the NWP, the discharge 

cannot cause the loss of greater than one 

acre of waters of the United States. The 

terms and conditions of NWP 46 require 

pre-construction notification for all 

activities authorized by that NWP. 

After NWP 46 was issued, the 

National Association of Home Builders 

filed a complaint in the United States 

District Court for the District of 

Columbia, making a facial challenge to 

the issuance of the NWP, claiming that 

it is beyond the authority granted to 

Corps under Section 404 of the Clean 

Water Act. In a memorandum opinion 

issued on March 26, 2008, the Court 

denied the Corps’ motion to dismiss the 

action on the grounds that the plaintiff 

lacks constitutional standing. In that 

opinion, the Court cited preamble 

language in the March 12, 2007, Federal 

Register notice that discussed the preconstruction notification requirements 

for NWP 46 (see 72 FR 11142, first 

column, first full paragraph, third 

sentence: ‘‘To ensure that this NWP is 

used only to authorize discharges into 

those types of ditches, and to ensure 

that those activities result in minimal 

adverse effects on the aquatic 

environment, we are requiring preconstruction notification for all 

activities.’’). 

The reference to ‘‘all activities’’ in the 

sentence quoted in the preceding 

paragraph was intended to refer to, and 

in fact applies to, only those activities 

for which some person voluntarily 

elects to seek authorization under NWP 

46, and to activities that qualify for 

authorization under NWP 46, because 

those activities satisfy all of the terms 

and conditions of NWP 46 (e.g., 

activities involving discharges of 

dredged or fill material to ditches 

meeting all of the criteria listed in the 

first paragraph of NWP 46). The preconstruction notification requirement in 

NWP 46 does not apply to any person 

who does not voluntarily elect to seek 

authorization under NWP 46, nor to any 

activity not satisfying all of the terms 

and conditions of NWP 46, nor to any 

ditch not meeting each of the four 

criteria listed in the first paragraph of 

NWP 46. 

The purpose of today’s notice is 

twofold: (1) To remove the sentence 

identified above that was published at 

72 FR 11142 and replace it with new 

sentences that provide a more accurate 

explanation of the circumstances under 

which NWP 46 requires the submission 

of pre-construction notifications, and (2) 

to provide an opportunity for the 

interested public to submit comments 

on the replacement sentence and the 

additional clarification provided by this 

notice. 

The new sentences that replace the 

removed sentence read as follows: ‘‘To 

ensure that this NWP authorizes only 

those activities that result in minimal 

adverse effects on the aquatic 

environment, we are requiring that 

persons who voluntarily choose to seek 

authorization under NWP 46 provide 

pre-construction notification prior to 

commencing the activity for which that 

person is seeking authorization, where 

the activity would satisfy all of the 

terms and conditions of NWP 46. 

Nationwide permit 46, like every other 

Corps general permit, does not make, 

and does not imply, any sort of assertion 

of geographic jurisdiction over any 

aquatic area or over any category of 

aquatic areas, nor does it make or imply 

any sort of assertion of activity-based 

jurisdiction over any activity or category 

of activities.’’ These replacement 

sentences are intended to avoid any 

inference that NWP 46 requires any 

person to submit a PCN unless that 

person is voluntarily seeking permit 

authorization under NWP 46, and 

believes that his proposed activity 

would satisfy all the terms and 

conditions of NWP 46. 

If a project proponent believes that, 

for any reason, his proposed activities 

do not require authorization under CWA 

Section 404, he need not choose to seek 

authorization for his activities under 

NWP 46. Moreover, if a project 

proponent does not wish to voluntarily 

make use of an NWP, or if he believes 

that his proposed activity does not 

satisfy all terms and conditions of an 

NWP, any person who voluntarily 

wishes to obtain a Department of the 

Army permit authorization can apply 

for an individual permit or can make 

use of another applicable type of general 

permit, such as a regional general 

permit. 

By its terms, NWP 46 authorizes 

discharges of dredged or fill material 

into non-tidal ditches that meet all of 

the following criteria: They are ‘‘(1) 

Constructed in uplands, (2) receive 

water from an area determined to be a 

water of the United States prior to the 

construction of the ditch, (3) divert 

water to an area determined to be a 

water of the United States prior to the 

construction of the ditch, and (4) are 

determined to be waters of the United 

States.’’ Authorization under NWP 46 is 

subject to a pre-construction notification 

requirement, as stated in the 

‘‘Notification’’ paragraph of NWP 46: 

‘‘The permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity. (See general condition 27.)’’ (72 

FR 11190). This pre-construction 

notification requirement applies only to 

those particular discharges of dredged 

or fill material, for which some person 

voluntarily elects to seek permit 

authorization under NWP 46, where 

those particular discharges of dredged 

or fill material would go into the 

specific category of non-tidal ditches 

identified in the text of the NWP itself, 

i.e., into ditches that meet each of the 

four criteria identified in NWP 46. 

If a project proponent believes, for 

any reason, his proposed activities do 

not require authorization under the 


rwilkins on PROD1PC63 with PROPOSALS
17458 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 

CWA, or believes that NWP 46 does not 

apply to his or her particular proposed 

activity, and thus does not choose to 

voluntarily seek NWP 46 authorization 

for that activity, he or she is not 

required to submit an NWP 46 preconstruction notification to the 

appropriate Corps district office prior to 

commencing that activity. One reason 

why a landowner or other project 

proponent may choose not to make use 

of NWP 46, and thus may choose not to 

send in a pre-construction notification 

for NWP 46, could be that the project 

proponent believes that the ditch in 

question is not subject to CWA 

jurisdiction, or for any other reason 

believes that his proposed activities do 

not require authorization under CWA 

Section 404. In such a situation, there is 

nothing in NWP 46 that would require 

that project proponent to send in a preconstruction notification or to seek any 

form of CWA Section 404 permit 

authorization. 

A person may desire to obtain a Corps 

Section 404 permit authorization, such 

as NWP 46, before discharging dredged 

or fill material into aquatic areas that 

may arguably be jurisdictional waters of 

the United States to avoid a citizens 

lawsuit seeking to enjoin his proposed 

activities, and/or avoid civil penalties. 

A citizens lawsuit challenging 

unpermitted discharges of dredged or 

fill material would be based on the 

application of the relevant Federal 

statutes and regulations relating to 

jurisdiction, and would not be based on 

or affected in any way by the terms or 

conditions of any NWP or other general 

permit, including NWP 46. A landowner 

or other person can voluntarily choose 

to avail himself of the legal protection 

from a possible citizens lawsuit that a 

permit authorization under NWP 46 can 

provide. If so, that person has the right 

to make use of NWP 46 if he voluntarily 

chooses to use it, and if his proposed 

activity meets all the terms and 

conditions of that NWP. 

For any sort of water body that is 

subject to the geographic jurisdiction of 

the CWA, and for any proposed activity 

that would constitute or involve the 

discharge of dredged or fill material into 

that jurisdictional water body, said 

geographic or activity-based jurisdiction 

is derived from the relevant statute (e.g., 

the CWA) and its implementing 

regulations that specifically address 

jurisdiction. No NWP or any other form 

of general permit asserts jurisdiction in 

any way, either explicitly or by 

implication. 

It follows from the principles 

explained above that the issuance of 

NWP 46 did not and does not involve, 

and does not result in, any assertion of 

Clean Water Act jurisdiction over any 

particular aquatic area or over any 

category of aquatic habitats, or over any 

particular activity or over any category 

of activities. Instead, issuance of NWP 

46 or any other NWP is merely one 

means of providing permit authorization 

under Section 404 of the Clean Water 

Act and/or Section 10 of the Rivers and 

Harbors Act of 1899, if a landowner or 

other person voluntarily elects to make 

use of that form of permit authorization, 

whatever his reason for doing so may 

be. 

Dated: April 9, 2009. Approved by: 

Steven L. Stockton, 

Director of Civil Works. 

[FR Doc. E9–8611 Filed 4–14–09; 8:45 am] 

BILLING CODE 3710–92–P 

DEPARTMENT OF EDUCATION 

Submission for OMB Review; 

Comment Request 

AGENCY: Department of Education. 

SUMMARY: The Director, Information 

Collection Clearance Division, 

Regulatory Information Management 

Services, Office of Management invites 

comments on the submission for OMB 

review as required by the Paperwork 

Reduction Act of 1995. 

DATES: Interested persons are invited to 

submit comments on or before May 15, 

2009. 

ADDRESSES: Written comments should 

be addressed to the Office of 

Information and Regulatory Affairs, 

Attention: Education Desk Officer, 

Office of Management and Budget, 725 

17th Street, NW., Room 10222, New 

Executive Office Building, Washington, 

DC 20503 or faxed to (202) 395–6974 or 

send an e-mail to 

oira_submission@omb.eop.gov. 

SUPPLEMENTARY INFORMATION: Section 

3506 of the Paperwork Reduction Act of 

1995 (44 U.S.C. Chapter 35) requires 

that the Office of Management and 

Budget (OMB) provide interested 

Federal agencies and the public an early 

opportunity to comment on information 

collection requests. OMB may amend or 

waive the requirement for public 

consultation to the extent that public 

participation in the approval process 

would defeat the purpose of the 

information collection, violate State or 

Federal law, or substantially interfere 

with any agency’s ability to perform its 

statutory obligations. The Director, 

Regulatory Information Management 

Services, Office of Management, 

publishes that notice containing 

proposed information collection 

requests prior to submission of these 

requests to OMB. Each proposed 

information collection, grouped by 

office, contains the following: (1) Type 

of review requested, e.g. new, revision, 

extension, existing or reinstatement; (2) 

Title; (3) Summary of the collection; (4) 

Description of the need for, and 

proposed use of, the information; (5) 

Respondents and frequency of 

collection; and (6) Reporting and/or 

Recordkeeping burden. OMB invites 

public comment. 

Dated: April 9, 2009. 

Angela C. Arrington, 

Director, Information Collection Clearance 

Division, Regulatory Information 

Management Services, Office of Management. 

Office of Special Education and 

Rehabilitative Services 

Type of Review: Extension. 

Title: Small Business Innovation 

Research (SBIR) Program—Phase I— 

Grant Application Package. 

Frequency: Annually. 

Affected Public: Businesses or other 

for-profit; not-for-profit institutions. 

Reporting and Recordkeeping Hour 

Burden: 

Responses: 200. 

Burden Hours: 9,000. 

Abstract: This application package 

invites small business concerns to 

submit a Phase I application for the 

Small Business Innovation Research 

(SBIR) Program (CFDA 84.133). This is 

in response to Public Law 106–554, the 

‘‘Small Business Reauthorization Act of 

2000, H.R. 5667’’ (the ‘‘Act’’) enacted on 

December 21, 2000. The Act requires 

certain agencies, including the 

Department of Education (ED) to 

establish a Small Business Innovation 

Research (SBIR) program by reserving a 

statutory percentage of their extramural 

research and development budgets to be 

awarded to small business concerns for 

research or research and development 

through a uniform, highly competitive, 

three-phase process each fiscal year. 

This information collection is being 

submitted under the Streamlined 

Clearance Process for Discretionary 

Grant Information Collections (1894– 

0001). Therefore, the 30-day public 

comment period notice will be the only 

public comment notice published for 

this information collection. 

Requests for copies of the information 

collection submission for OMB review 

may be accessed from http:// 

edicsweb.ed.gov, by selecting the 

‘‘Browse Pending Collections’’ link and 

by clicking on link number 3978. When 

you access the information collection, 

click on ‘‘Download Attachments’’ to 

view. Written requests for information 

should be addressed to U.S. Department 


rwilkins on PROD1PC63 with PROPOSALS