[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17456-17458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8611]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Public Notice Concerning Nationwide Permit 46

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice.

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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: <a href="/cdn-cgi/l/email-protection#771316011e13591559181b0418193702041614125916051a0e591a1e1b"><span class="__cf_email__" data-cfemail="2044415649440e420e4f4c534f4e6055534143450e41524d590e4d494c">[email protected]</span></a>. 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 
e-mail. The regulations.gov Web site is an anonymous access system, 
which means

[[Page 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 
e-mail at <a href="/cdn-cgi/l/email-protection#0f6b6e79666b216d2160637c60614f7a7c6e6c6a216e7d627621626663"><span class="__cf_email__" data-cfemail="6e0a0f18070a400c4001021d01002e1b1d0f0d0b400f1c031740030702">[email protected]</span></a>.

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 pre-construction 
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 pre-construction 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 pre-construction 
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 pre-construction 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

[[Page 17458]]

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 pre-construction 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 pre-construction 
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


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