Federal Register / Vol. 61, No. 82 / Friday, April 26, 1996 / Notices 18575

(a) Events that are not located in,

proximate to, or above an area

designated as environmentally sensitive

by an environmental agency of the

Federal, State, or local government. For

example, environmentally sensitive

areas may include such areas as critical

habitats or migration routes for

endangered or threatened species or

important fish or shellfish nursery areas.

(b) Events that are located in,

proximate to, or above an area

designated as environmentally sensitive

by an environmental agency of the

Federal, State, or local government and

for which the Coast Guard determines,

based on consultation with the

Government agency, that the event will

not significantly affect the

environmentally sensitive area.

(Checklist and CED required.)

[FR Doc. 96–10335 Filed 4–25–96; 8:45 am]

BILLING CODE 3710–92–M

Department of the Army; Corps of

Engineers

Proposed Regulatory Guidance Letter

on Programmatic General Permits

AGENCY: U.S. Army Corps of Engineers,

DoD.

ACTION: Notice of intent and request for

comments.

SUMMARY: The Corps of Engineers is

proposing to issue a Regulatory

Guidance Letter (RGL) which would

establish National policy guidance for

the development and implementation of

Programmatic General Permits (PGP).

PGPs are a type of general permit issued

by the Corps, that authorizes, for the

purposes of Section 10 of the Rivers and

Harbors Act of 1899 (33 U.S.C. 403),

Section 404 of the Clean Water Act (33

U.S.C. 1344), and/or Section 103 of the

Marine Protection, Research and

Sanctuaries Act of 1972 (33 U.S.C.

1413), certain projects that are also

regulated by another Federal, tribal,

state, or local regulatory authority. This

notice provides the proposed PGP RGL

for review and opportunity to comment.

RGLs are used by the Corps

Headquarters as a means to transmit

guidance on the regulatory program (33

CFR Parts 320–330), to its division and

district engineers. While not required by

law or regulation, the Corps is

publishing this PGP RGL for review and

comment.

DATES: Comments on the proposed PGP

RGL must be received by May 28, 1996.

ADDRESSES: Comments may be mailed to

the U.S. Army Corps of Engineers,

ATTN: CECW–OR, PGP Docket, 20

Massachusetts Avenue, NW.,

Washington, DC 20314–1000 or faxed to

(202) 761–5096.

FOR FURTHER INFORMATION CONTACT: Mr.

Victor Cole, Regulatory Branch, Office

of the Chief of Engineers at (202) 761–

0199.

SUPPLEMENTARY INFORMATION: The

Clinton Administration’s Wetlands Plan

promotes State involvement through

assumption of the Clean Water Act

Section 404 program (through Section

404 g–1) and/or PGP development.

Many States have chosen to pursue a

PGP with the Corps in lieu of State

assumption or as an initial first step to

assumption. Regardless of the reason,

the Corps encourages the use of PGPs as

a effective mechanism to reduce

duplicative regulatory processes,

simplify the application process for

applicants, and make wise use of

limited resources, while continuing to

protect the aquatic environment in at

least an equivalent manner as the Corps

program. Our efforts to prepare a draft

PGP RGL for publication involved

coordination with several states, Corps

districts, and other Federal resource

agencies. The draft PGP RGL was

developed based upon this coordination

and structured similar to several

successful PGPs that have been issued

by Corps districts. The draft PGP RGL

was also provided for review and

comment to the White House Wetlands

Working Group. Upon review and

consideration of comments received, the

Corps will publish the final PGP RGL in

the Federal Register.

Dated: April 1, 1996.

Approved:

Daniel R. Burns,

Chief, Operations, Construction, and

Readiness Division, Directorate of Civil

Works.

Regulatory Guidance Letter

RGL 96–01, Date: pending, Expires: pending

Subject: Programmatic General Permits,

Including State Program General Permits

1. Background and Purpose

a. The development of a

programmatic general permit (PGP) is an

effective mechanism available to the

U.S. Army Corps of Engineers (Corps)

and Federal, tribal, State, and local

regulatory authorities (other regulatory

authority (ORA)) to improve the

regulatory process for applicants,

enhance environmental protection,

reduce unnecessary duplicative

procedures and evaluations, and make

more efficient use of limited resources.

The partnership that develops between

the Corps and the ORA will directly

benefit the regulated public and

effectively reduce unnecessary

duplication while maintaining

important environmental safeguards.

Our encouragement of the use of PGPs

should not be viewed as an attempt to

allow the Corps to evade its statutory

responsibility to administer the

Regulatory Program, nor as an attempt

to delegate the Regulatory Program, or

simply to reduce the Corps workload. In

times of increasing fiscal pressure, all

levels of Government must redouble

their efforts to use resources as

efficiently as possible. PGPs can provide

an efficient mechanism to meet this

objective, to maintain important

environmental protection, and to

provide improved service to the

regulated public.

b. A PGP is a type of general permit

(33 CFR 322.2(f) and 323.2(h)), issued

by the Corps, that authorizes, for the

purposes of Section 10 of the Rivers and

Harbors Act of 1899 (RFA; 33 U.S.C.

403), Section 404 of the Clean Water Act

(CWA; 33 U.S.C. 1344), and/or Section

103 of the Marine Protection, Research

and Sanctuaries Act of 1972 (MPRSA;

33 U.S.C. 1413), certain projects that are

also regulated by another Federal, tribal,

State, or local regulatory authority. A

PGP is the written vehicle identifying

the terms, limitations, and conditions

under which specific projects regulated

by an ORA program may be authorized

under the Corps Regulatory Program

with a much more efficient and

abbreviated review by the Corps.

Programmatic general permits are

designed to:

(1) Simplify the evaluation process for

both the regulatory agencies and the

applicant (i.e., to strive for ‘‘one-stopshopping’’);

(2) Provide at least equivalent (and

sometimes enhanced) environmental

protection for aquatic resources;

(3) Reduce unnecessary duplicative

project evaluation; and

(4) Promote more effective and

efficient use of Corps, as well as other

agencies’, resources.

c. While administering the Regulatory

Program, the Corps attempts to

minimize duplication of effort with

ORA programs that protect the aquatic

environment in a manner at least

equivalent to the Corps Regulatory

Program. Minimizing duplication of

effort serves the best interests of the

regulated public, by reducing or

eliminating unnecessary paperwork,

reviews, and delays, and also serves the

best interests of the environment and all

other aspects of the public interest, by

allowing the Corps to use its limited

regulatory resources where they will do

the most good. Moreover, in many cases

when an ORA program develops to the

extent that a PGP is appropriate, the
18576 Federal Register / Vol. 61, No. 82 / Friday, April 26, 1996 / Notices

1Funding for the development of the PGP may be

available through the U.S. Environmental

Protection Agency State Wetland Grant Program.

environmental protection from the PGP

is greater than that offered by the Corps

Regulatory Program without the PGP.

Greater protection is achieved because

the combined Federal, tribal, State, and/

or local resources are available, and are

more efficiently utilized to regulate

potentially harmful activities, and to

ensure that the terms and conditions of

the PGP are enforced.

d. Pursuant to Section 404 of the

CWA, Section 10 of the RHA, and

Section 103 of the MPRSA, the Corps

has the authority to issue general

permits (regional, programmatic, and

nationwide) for any category of projects

that are substantially similar in nature,

and result in no more than minimal

adverse effects on the environment,

either individually or cumulatively.

General permits are actively utilized in

the Corps Regulatory Program. Each

year the Corps authorizes more than

20,000 projects under regional general

permits and more than 60,000 projects

under nationwide general permits.

Approximately 50 of the Corps existing

general permits are PGPs that were

developed in conjunction with an ORA.

Terms and conditions of general

permits, including PGPs, are just as

enforceable as terms and conditions of

individual permits, and compliance

with a PGP ultimately depends upon

whether an applicant adheres to the

terms and conditions established by or

incorporated in the PGP. The

development of a PGP will reduce

unnecessary duplication between the

Corps and the ORA, which will allow

the Corps to focus its limited resources

on the remaining projects requiring

individual authorization, enforcement,

monitoring, compliance, etc. Corps

workload reductions ultimately

achieved through PGPs will facilitate

more thorough and expeditious

individual permit evaluations and

increases in monitoring and

enforcement of permit conditions.

During the initial implementation of the

PGP with the ORA, the Corps workload

may not be reduced due to the period

of time necessary for the Corps, Federal

resource agencies, and the public to

reach a level of confidence with the

ORA’s ability to implement the ORA

program, in concert with the PGP.

Although the Corps workload reduction

values may not be achieved upon

issuance of the PGP, the value of an

improved process for applicants and

enhanced coordination between the

Corps and the ORA warrant pursuing a

PGP. Ultimately, workloads should be

reduced through effective use of a PGP.

e. The Corps will, on a continuing

basis and in coordination with ORAs

and Federal and State resource agencies,

identify opportunities to develop and

establish PGPs based on Federal, tribal,

State, and local programs that regulate

projects in waters of the United States.

The Corps district will be the point of

contact with the ORA to develop a PGP.

Corps districts should encourage other

Federal and State resource agencies to

provide information regarding potential

opportunities for PGPs and to

participate actively during the

development and evaluation of PGPs.

f. Some PGPs have been developed

with an ORA to cover relatively broad

regulatory programs. For example, the

Corps has established a PGP in North

Carolina covering projects regulated

under that State’s Coastal Zone

Management Program, and in

Massachusetts for projects regulated

under the State’s wetland regulatory

program. In addition, the Corps has

numerous PGPs based on regional or

local programs, reservoir authorities,

etc. These may cover projects regulated

by county or regional regulatory

programs administered under State

authority. The Corps has developed

PGPs with several counties in Florida

for minor projects involving waterfront

residential development. The Corps has

also developed a PGP with the

Tennessee Valley Authority that

regulates certain projects within their

reservoirs. As more tribal, State, and

local governments establish wetland or

aquatic resource regulatory programs,

the Corps should increase its efforts to

develop environmentally sound PGPs to

reduce unnecessary duplication. One of

the key benefits of PGPs is the flexibility

they afford ORAs in terms of the

projects regulated and the geographic

scope of regulation. The ORA program

should ideally cover all waters of the

United States under Corps jurisdiction,

which should simplify and reduce

confusion in the application process for

applicants. However, a PGP cannot be

used to limit or to reduce Corps

regulatory jurisdiction in any way.

g. The Corps will develop PGPs only

where the ORA program provides, with

the necessary Corps conditions or

review, the same or higher level of

environmental protection as that

provided by the overall Corps

Regulatory Program. In addition to PGPspecific conditions and the

requirements in section 3 below, there

are inherent aspects of the Corps

program that ensure continued strong

protection of the environment under

PGPs. First, all general permits are valid

for a maximum of five years and must

be reevaluated prior to reissuance. This

ensures that the Corps will evaluate the

operation of every PGP and the level of

environmental protection it provides at

least every five years. Second, the Corps

retains the authority to modify,

suspend, or revoke a PGP when the

Corps district believes that appropriate

protection is not being afforded to the

environment or any other aspect of the

public interest, or when the Corps

concludes that adverse environmental

effects are more than minimal, either

individually or cumulatively. Third,

and perhaps most important, the Corps

always retains its authority to require an

individual Corps permit in any given

case for any particular project, even if

the project otherwise meets all the

requirements of the PGP. The Corps will

exercise this authority when it

concludes that the processing of an

individual Corps permit is necessary to

protect the environment or any other

aspect of the public interest, or when

impacts are more than minimal, either

individually or cumulatively. Finally,

the Corps retains the full range of its

enforcement authority and options

where it believes that a project does not

comply with the terms or conditions of

a PGP, regardless of whether the ORA

authorized the project under its

program.

h. When the Corps and the ORA

determine that the development of a

specific PGP is warranted,1 the

procedures for the development of

regional general permits will be utilized

(33 CFR Part 325). The Corps will

initiate early coordination (e.g., a

scoping meeting) with the ORA, Federal

and State natural resource agencies, the

State agency responsible for Section 401

of the CWA, the State Coastal Zone

Management Agency, the State Historic

Preservation Office, and/or any other

appropriate agency, to discuss the

proposed PGP and to identify potential

concerns. Discussions regarding the

development of a PGP will be led by the

Corps with the ORA with which the

PGP may be developed. Upon

completion of the early coordination

phase, the Corps will issue a public

notice (for a minimum of 30 days)

describing the proposed PGP, including

any proposed terms and conditions

under which specific projects may be

authorized by the Corps under the terms

and conditions of the PGP. Public

hearings and/or public meetings will be

held, as appropriate (33 CFR part 327).

The Corps will evaluate and consider

fully all comments from the resource

agencies, the ORA, other appropriate

agencies, and the public. A combined

decision document, including National

Environmental Policy Act
Federal Register / Vol. 61, No. 82 / Friday, April 26, 1996 / Notices 18577

2A narrow program may include authority for a

single type of project (e.g., piers, floats, fish ladders,

etc.)

3Examples are illustrative only and most are

taken from the existing Massachusetts PGP. Actual

limits for each category will vary and be determined

during the development process of each PGP.

environmental documentation, the

statement of findings, and Section

404(b)(1) Guidelines analysis, as

appropriate, will be prepared by the

Corps pursuant to current regulations,

policies, and guidance.

i. This Regulatory Guidance Letter

(RGL) is not intended to require that any

PGP that is already in effect and

operating need necessarily be

immediately revised to conform with

this guidance. However, at the end of

that PGPs five-year life (or sooner if

appropriate), the district engineer

should ensure that the PGP, if re-issued,

will comply with this guidance, and

make any necessary revisions.

2. Definitions

Several terms are being defined for

purposes of this guidance.

a. The term other regulatory authority

means any Federal, tribal, State, or local

regulatory program other than the Corps

Regulatory Program.

b. The term preconstruction

notification (PCN) means a notification

by an applicant or ORA (See 3.b.(2) &

(3)) to the Corps that is required prior

to initiation of work by the applicant

pursuant to the PGP. The PCN

requirements generally include time

frames for verification, expiration,

coordination, and/or automatic

verification (applicants should consider

their projects automatically verified

under the PGP when the established

time frame has passed with no response

from the Corps either verifying under

the PGP or advising that a Corps

standard permit will be required).

c. The term verification means a

written response to the applicant from

the appropriate Corps district that

indicates that a specific project has been

authorized by the Corps under the terms

and conditions of the PGP. The

verification from the Corps will be in

response to a request by an applicant or

as part of a PGP condition requiring

notice to the Corps and Corps

verification before the applicant

proceeds with a project. The Corps PGP

verification procedures should be

similar to those found in the Corps

nationwide general permit procedures

(33 CFR § 330.6), and should state that

the proposed project may proceed upon

approval under the ORA program

subject to the terms and conditions of

the PGP, as well as any additional

project specific special conditions

provided in the Corps verification letter.

In some cases it will be appropriate for

the ORA to provide an applicant with a

copy of the Corps PGP when providing

the ORA permit decision.

3. Programmatic General Permit

Requirements

a. PGP criteria: All PGPs must be

designed to meet the following five

criteria:

(1) every project authorized under a

PGP can cause no more than minimal

adverse environmental effects,

individually or cumulatively, based on

compliance with the terms and

conditions of the PGP;

(2) PGP implementation must

simplify the evaluation process for

applicants (preferably through one-stopshopping) and reduce duplication

between the Corps and the ORA, and

must not increase the number of

standard Corps permits;

(3) a PGP must provide protection for

aquatic resources at least equivalent to

the overall Corps Regulatory Program

(and sometimes will enhance

environmental protection);

(4) PGP implementation must not

increase the Corps overall workload;

and

(5) every project authorized under a

PGP must comply with all Federal

environmental laws and must ensure

that all relevant Federal interests will be

protected (e.g., national defense,

navigation, endangered species, etc.)

b. The Corps review of specific permit

applications under a PGP may vary. The

Corps, with input from the ORA and the

Federal resource agencies, will

determine the appropriate level of case

specific review and periodic overview

regarding implementation of the PGP.

Such review and overviews will vary

depending on whether the PGP is

developed for a broad or narrow 2 ORA

program. PGPs that are limited in nature

and/or developed for narrow ORA

programs may not require case specific

review (category 1) so that only periodic

overview by the Corps would be

necessary as discussed in paragraph c.

below. On the other hand, for PGPs

proposing to cover a broad spectrum of

projects, the Corps and ORA should

strive to develop a multi-category

approach to review and screen projects.

The establishment of thresholds in each

category may also allow the Corps to

‘‘regionalize’’ some nationwide general

permits, including nationwide general

permit number 26. The Corps and the

ORA should also strive to use the

minimal number of categories that are

necessary to meet the goals of a PGP

(e.g., the North Carolina PGP is

established using categories 3 and 4 as

described below). The thresholds of

each category may vary, based upon

regional factors, statewide factors,

watershed factors, existing ORA

program evaluations, etc. Some category

thresholds may be developed based on

the type of project, and others may be

developed based on the size of the

wetland acreage impact. For new ORA

programs, category 1 reviews may not be

appropriate until the performance of the

ORA has been demonstrated.

(1) Category 1: The first category

typically would include those projects

that would not require notification to

the Corps (e.g., projects involving less

than 5,000 square feet of fill within

inland waterways or wetlands,

including secondary impacts from

drainage, flooding, or clearing, as

described in the Massachusetts PGP).3

Category 1 must be limited to those

projects where it is clear that such

projects would result in no more than

minimal environmental adverse effects,

individually and/or cumulatively.

While category 1 thresholds may vary

between PGPs, these thresholds should

be established carefully so as to ensure

that all category 1 projects clearly do not

result in adverse environmental effects

that are more than minimal after

applying the terms and conditions of the

PGP and, therefore, require no Federal

review.

(2) Category 2: The second category

would involve projects that require a

PCN to the Corps and/or joint review of

applications by the Corps and the ORA

(e.g., projects involving impacts near a

Federal navigation project). Category 2

projects are those that will result in no

more than minimal adverse

environmental effects, individually and/

or cumulatively, but a PCN will be

required to ensure that Corps interests

or concerns, including Corps project

real estate and navigation issues, are

satisfied. Due to the exclusive, Corpsonly nature of the concern under

review, this category would not involve

coordination with the other Federal

resource agencies. A time frame,

generally 30–45 days, should be

established to resolve issues during the

review process. For projects that do not

pass the Corps and/or joint Corps and

ORA screening, a standard permit

application to the Corps would be

necessary as described in category 4.

(3) Category 3: The third category

would involve a PCN to the Corps with

Federal resource agency coordination to

ensure that the project will result in no

more than minimal adverse

environmental effects, individually and/
18578 Federal Register / Vol. 61, No. 82 / Friday, April 26, 1996 / Notices

or cumulatively (e.g., projects involving

5,000 square feet to one acre of impacts

within land waterways or wetlands as

described in the Massachusetts PGP).

The ORA may also screen, during its

verification process, for certain Federal

interests (e.g., presence of federally

threatened and/or endangered species).

The ORA can provide this information

to the Corps to aid in the Corps

determination of compliance with the

appropriate Federal law or regulation,

and/or the Corps can use the

information to coordinate with the

appropriate Federal resource agencies.

The PCN must also include a process by

which Federal resource agency

comments will be considered fully

during a specified comment period

(generally 30–45 days). A provision to

allow the Federal resource agencies an

opportunity to request review of a

specific project (i.e., ‘‘kick out’’) under

the Corps standard permit procedures

should be included for category 3 PCN

reviews. While Corps districts should

consider this an automatic ‘‘kick out’’

requirement for category 3 projects,

there may be cases where the Corps and

the Federal resource agencies agree that

a ‘‘kick out’’ is unnecessary based upon

the safeguards afforded by the terms and

conditions of the PGP. When requesting

a ‘‘kick out’’ on a specific action, the

Federal resource agencies must submit,

during the PCN, a written rationale of

their concerns and recommendations to

satisfy those concerns. (The Corps, of

course, retains its full authority to

require a standard permit for any

project, regardless of category.)

(4) Category 4: The fourth category

would involve projects that exceed

established project and/or acreage

thresholds of the PGP or other

applicable general permit (e.g., projects

involving adverse effects greater than 1

acre within inland waterways or

wetlands as described in the

Massachusetts PGP). Such projects

would require standard permit

evaluation by the Corps. Category 4

represents essentially the threshold

limits of the PGP and not a category of

verification under a PGP.

c. Periodic Overviews: The Corps

should conduct periodic reviews of the

PGP to determine that the ORA program

is continuing to provide environmental

protection at least equivalent to that

provided by the overall Corps

Regulatory Program without the PGP,

based upon the terms and conditions of

the PGP, and to determine whether any

modifications are necessary to improve

the implementation of the PGP. The

Corps may conduct an annual review of

the PGP, may require annual reporting

by the ORA of projects approved by the

ORA under its program, or may conduct

an overall review prior to expiration of

the PGP for consideration in the

reevaluation of the PGP for reissuance.

This is especially important when an

ORA program is new or has not

established a performance record.

Immediate Corps overview should occur

when the ORA modifies its program

(e.g., changes in State law, regulations,

procedures) prior to the expiration of

the PGP, to ensure that the terms and

conditions of the PGP will not be

affected. Corps overview should ensure

that the use of the PGP has resulted in

no more than minimal adverse

environmental effects to aquatic

resources, either individually and/or

cumulatively. Overview should

generally include a periodic review of a

random subset of projects authorized

under the PGP that had no reporting

requirement to the Corps (e.g., category

1), as well as programmatic review of

the procedures and conditions of the

PGP. During development of the PGP,

the Corps and ORA should determine

what information must be collected to

facilitate oversight reviews.

d. Compliance with Federal laws:

(1) Every project authorized under the

PGP must comply with all applicable

Federal laws, with special compliance

review given to those Federal laws

related to the Corps Regulatory Program

(33 CFR § 320.3). The Federal laws

include, but are not necessarily limited

to, the Endangered Species Act (ESA),

the Wild and Scenic Rivers Act, the

National Historic Preservation Act

(NHPA), the Coastal Zone Management

Act (CZMA), the CWA, Sections 9 and

10 of the RHA, and Section 103 of the

MPRSA.

(2) Projects authorized under a PGP

should ensure compliance with Section

401 of the CWA and Section 307 of the

CZMA, in accordance with 33 CFR

330.4(c) and 330.4(d), respectively.

(3) The Corps must coordinate with

the ORA, the U.S. Fish and Wildlife

Service, and the National Marine

Fisheries Service where appropriate,

regarding how the PGP will implement

the mandates of the ESA. The Corps

must consult with the ORA and the

State Historic Presrvation Office to

ensure that the PGP is issued in

compliance with the NHPA. The PGP

should be conditioned with the same

language found in the Corps Federal

Register/Code of Federal Regulations

citation regarding the nationwide

general permit program for the

following three conditions: Wild and

Scenic Rivers, Endangered Species, and

Historic Properties. Upon the

reissurance of a PGP, the Corps will

ensure that the current Federal Register/

Code of Federal Regulations citation is

used for the three conditions.

e. Public Notice:

(1) The Corps must ensure that the

general public has a reasonable

opportunity to participate fully in the

development and re-evaluation of every

PGP through our procedures in 33 CFR

Part 325.

(2) The PGP must also ensure that

interested members of the public are

given notice of projects to be authorized

by the Corps under the terms and

conditions of the PGP, so that their

comments can be submitted to the ORA

and/or to the Corps. Specifically, the

ORA must have, or establish, a

reasonable public notification process

for projects to be authorized by the

Corps under the PGP. While it does not

have to be identical to the Corps public

involvement process, the ORA

procedures cannot have the effect of

substantially reducing the ability of the

public to participate in the regulatory

process, in comparison with the public

notice and comment procedures

provided by the Corps Regulatory

Program without the PGP.

The PGP may also be developed for

projects where the ORA has established

a ‘‘general permit program or

exemptions’’, so long as the ORA has

provided an opportunity for the public

to participate in the original

development, and periodic reevaluation of the ORA general permits

or exemptions.

f. Consistency with other General

Permits: One objective of PGPs is to

reduce the complexity of the Corps

Regulatory Program. In this regard, it

may be appropriate to suspend or

revoke some or all of the existing

nationwide or regional general permits

when the projects authorized by such

Corps permits will be covered by the

PGP.

g. Enforcement: The Corps, subject to

the discretion of the district engineer,

will enforce project specific special and

general PGP terms and conditions to

ensure that requisite environmental and

public interest safeguards are met. The

Corps may develop procedures with the

ORA for the resolution of

noncompliance of projects authorized

by the Corps under a PGP.

4. This guidance expires (pending),

unless revised sooner or rescinded.

For the Commander:

signature pending

Stanley G. Genega,

Major General, USA, Director of Civil Works.

[FR Doc. 96–10334 Filed 4–25–96; 8:45 am]

BILLING CODE 3710–92–M