30780 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

DEPARTMENT OF DEFENSE

Department of the Army

Corps of Engineers

Proposal To Issue, Reissue, and

Modify Nationwide Permits; Public

Hearing

AGENCY: U.S. Army Corps of Engineers,

DOD.

ACTION: Notice of intent and request for

comments.

SUMMARY: The Corps of Engineers is

proposing to reissue the existing

nationwide permits (NWPs) and

conditions, with some modifications,

and issue four new NWPs. We are also

proposing options for the threshold

limits for NWP 26.

The public is invited to provide

comments on these proposals and is

being given the opportunity to request

public hearings on the NWPs. The Corps

of Engineers will hold a public hearing

at the National Guard Association

Building, at One Massachusetts Ave,

NW, Washington, DC on July 17, 1996,

at 10:00 AM and end at 4:00 PM or

before, if all speakers present have had

an opportunity to speak. This hearing is

opened to the public. Comments may be

submitted in person at the hearing or in

writing to the Office of the Chief of

Engineers at the address given below.

The hearing record will remain open

until August 1, 1996. The legal authority

for this hearing is section 404 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. 403).

DATES: Comments must be received by

August 16, 1996.

ADDRESSES: National comments should

be submitted in writing to: Office of the

Chief of Engineers, ATTN: CECW–OR,

20 Massachusetts Avenue NW,

Washington, DC 20314–1000. Regional

comments should be sent to the

appropriate Corps District offices at the

addresses listed below. Comments will

be available for examination at the

Office of the Chief of Engineers, Room

6225, Pulaski Building, 20

Massachusetts Avenue NW,

Washington, DC 20314–1000.

FOR FURTHER INFORMATION CONTACT: Mr.

Tim Zimmerman or Mr. Sam Collinson,

Regulatory Branch, Office of the Chief of

Engineers at (202) 761–0199.

SUPPLEMENTARY INFORMATION:

Background

The White House Office on

Environmental Policy announced the

President’s Wetlands Plan on August 24,

1993. The plan sets forth a

comprehensive package of

improvements to the Federal wetlands

protection programs. A major goal of the

plan is that the programs be fair,

flexible, and effective. To achieve this

goal, the Corps regulatory program must

continue to provide effective protection

for wetlands and other aquatic

resources, while conveying to the public

a clear understanding of regulatory

requirements. In its implementation, the

regulatory program must be

administratively efficient, flexible yet

predictable, and avoid unnecessary

impacts to private property, the

regulated public, and the environment.

There are 37 existing nationwide

permits. Thirty-six of the NWPs were

published in the November 22, 1991,

Federal Register at 33 CFR Part 330,

Appendix A. They became effective on

January 21, 1992, and expire on January

21, 1997. One additional NWP, the

Single-Family Housing NWP (NWP 29),

was published in the Federal Register

on July 27, 1995, and became effective

on September 25, 1995. NWP 29 will

expire on September 25, 2000.

In the preamble of the Final Rule at

33 CFR Part 330 as published in the

Federal Register (56 FR 59110) on

November 22, 1991, we indicated that

upon expiration of the existing NWPs,

we would issue the NWPs separately

from the regulations governing their use

and rescind 33 CFR Part 330, Appendix

A. The NWPs will now be published

using the procedures adopted in

November 22, 1991, for issuance,

reissuance, modification, and revocation

of NWPs (see 33 CFR 330.5). The NWPs

will no longer appear in the Code of

Federal Regulations but will be

published in the Federal Register and

announced, with regional conditions, in

the public notices issued by Corps

district offices.

We are proposing to reissue all the

existing NWPs. We are also proposing to

modify several existing NWPs and

several NWP conditions as published in

the Federal Register (56 FR 59110–47)

on November 22, 1991 to clarify

activities that are authorized by NWPs

and those that are not. Several of the

proposed clarifications are a result of

the modification of the definition of

discharge of dredged material at 33 CFR

Part 323.2(d) as published in the

Federal Register (58 FR 45008–38) on

August 25, 1993 (i.e., the excavation

rule). The definition was revised to

clarify that certain excavation activities

are regulated and included the

following language: ‘‘(iii) Any addition,

including any redeposit, of dredged

material, including excavated material,

into waters of the United States which

is incidental to any activity, including

mechanized landclearing, ditching,

channelization, or other excavation.’’

(See 33 CFR 323.(d) for the complete

definition of discharge of dredged

material).

We are also proposing, in accordance

with the President’s Wetlands Plan, four

new NWPs to authorize those additional

regulated activities with minimal effects

that resulted from the excavation rule.

These new NWPs include: A. Moist Soil

Management for Wildlife; B. Food

Security Act Minimal Effect

Exemptions; C. Minor Mining Activities;

and D. Maintenance of Existing Flood

Control Projects.

The Corps believes, that when these

changes are considered as a whole, the

average approval time for projects

requiring a Department of the Army

permit will not change. However, the

individual approval time for some

projects will be longer while others will

be shorter. In addition, we believe that

the approval time for a vast majority of

nationwide permits will not be affected

by these changes.

Regional Conditioning of Nationwide

Permits

Concurrent with this Federal Register

notice, District Engineers are issuing

local public notices. In addition to the

changes to NWP conditions being

proposed by the Chief of Engineers, the

Division and District Engineers may

propose regional conditions or propose

revocation of NWP authorization for all

or some or portions of the NWPs.

Regional conditions may also be

required by state Section 401 water

quality certification or for state coastal

zone consistency. Comments on

regional issues and regional conditions

should be sent to the appropriate

District Engineer as indicated below.

ALABAMA

Mobile District Engineer, ATTN: CESAM–

OP–S, P.O. Box 2288, Mobile, AL 36628–

0001

ALASKA

Alaska District Engineer, ATTN: CENPA–

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–R, 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:

CESWA–CO–R, 4101 Jefferson Plaza NE,

Rm 313, Albuquerque, NM 87109–3435

CONNECTICUT
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30781

New England Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

DELAWARE

Philadelphia District Engineer, ATTN:

CENAP–OP–R, Wannamaker Building,

100 Penn Square, East Philadelphia, PA

19107–3390

FLORIDA

Jacksonville District Engineer, ATTN:

CESAJ–RD, P.O. Box 4970, Jacksonville,

FL 32232–0019

GEORGIA

Savannah District Engineer, ATTN:

CESAS–OP–F, P.O. Box 889, Savannah,

GA 31402–0889

HAWAII

Honolulu District Engineer, ATTN:

CEPOD–ET–PO, Building 230, Fort

Shafter, Honolulu, HI 96858–5440

IDAHO

Walla Walla District Engineer, ATTN:

CENPW–OP–RF, Building 602, CityCounty Airport, Walla Walla, WA

99362–9265

ILLINOIS

Rock Island District Engineer, ATTN:

CENCR–OD–S, P.O. Box 2004, Rock

Island, IL 61201–2004

INDIANA

Louisville District Engineer, ATTN:

CEORL–OR–F, P.O. Box 59, Louisville,

KY 40201–0059

IOWA

Rock Island District Engineer, ATTN:

CENCR–OD–S, P.O. Box 2204, Rock

Island, IL 61201–2004

KANSAS

Kansas City District Engineer, ATTN:

CEMRK–OD–P, 700 Federal Building,

601 E. 12th Street, Kansas City, MO

64106–2896

KENTUCKY

Louisville District Engineer, ATTN:

CEORL–OR–F, P.O. Box 59, Louisville,

KY 40201–0059

LOUISIANA

New Orleans District Engineer, ATTN:

CELMN–OD–S, P.O. Box 60267, New

Orleans, LA 70160–0267

MAINE

New England Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

MARYLAND

Baltimore District Engineer, ATTN:

CENAB–OP–R, P.O. Box 1715,

Baltimore, MD 21203–1715

MASSACHUSETTS

New England Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

MICHIGAN

Detroit District Engineer, ATTN: CENCE–

CO–L, P.O. Box 1027, Detroit, MI 48231–

1027

MINNESOTA

St. Paul District Engineer, ATTN: CENCS–

CO–R, 190 Fifth Street, East, St. Paul,

MN 55101–1638

MISSISSIPPI

Vicksburg District Engineer, ATTN:

CELMV–CO–O, P.O. Box 80, Vicksburg,

MS 39180–0080

MISSOURI

Kansas City District Engineer, ATTN:

CEMRK–OD–P, 700 Federal Building,

601 E. 12th Street, Kansas City, MO

64106–2896

MONTANA

Omaha District Engineer, ATTN: CEMRO–

OP–R, P.O. Box 5, Omaha, NE 68101–

0005

NEBRASKA

Omaha District Engineer, ATTN: CEMRO–

OP–R, 215 North 17th Street, Omaha, NE

68101–4978

NEVADA

Sacramento District Engineer, ATTN:

CESPK–CO–O, 1325 J Street,

Sacramento, CA 95814–2922

NEW HAMPSHIRE

New England Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

NEW JERSEY

Philadelphia District Engineer, ATTN:

CENAP–OP–R, Wannamaker Building,

100 Penn Square East, Philadelphia, PA

19106–2991

NEW MEXICO

Albuquerque District Engineer, ATTN:

CESWA–CO–R, 4101 Jefferson Plaza NE,

Rm 313, Albuquerque, NM 87109–3435

NEW YORK

New York District Engineer, ATTN:

CENAN–OP–R, Jacob K. Javits Federal

Building, New York, NY 10278–0090

NORTH CAROLINA

Wilmington District Engineer, ATTN:

CESAW–CO–R, P.O. Box 1890,

Wilmington, NC 28402–1890

NORTH DAKOTA

Omaha District Engineer, ATTN: CEMRO–

OP–R, 215 North 17th Street, Omaha, NE

68102–4978

OHIO

Huntington District Engineer, ATTN:

CEORH–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: CENPP–

PL–R, 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 Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

SOUTH CAROLINA

Charleston District Engineer, ATTN:

CESAC–CO–P, P.O. Box 919, Charleston,

SC 29402–0919

SOUTH DAKOTA

Omaha District Engineer, ATTN: CEMRO–

OP–R, 215 North 17th Street, Omaha, NE

68102–4978

TENNESSEE

Nashville District Engineer, ATTN:

CEORN–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–

4794

VERMONT

New England Division Engineer, ATTN:

CENED–OD–R, 424 Trapelo Road,

Waltham, MA 02254–9149

VIRGINIA

Norfolk District Engineer, ATTN: CENAO–

OP–P, 803 Front Street, Norfolk, VA

23510–1096

WASHINGTON

Seattle District Engineer, ATTN: CENPS–

OP–RG, P.O. Box 3755, Seattle, WA

98124–2255

WEST VIRGINIA

Huntington District Engineer, ATTN:

CEORH–OR–F, 502 8th Street,

Huntington, WV 25701–2070

WISCONSIN

St. Paul District Engineer, ATTN: CENCS–

CO–R, 190 Fifth Street, East, St. Paul,

MN 55101–1638

WYOMING

Omaha District Engineer, ATTN: CEMRO–

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:

CEPOD–ET–PO, Building 230, Fort

Shafter, Honolulu, HI 96858–5440

PUERTO RICO & VIRGIN IS

Jacksonville District Engineer, ATTN:

CESAJ–RD, P.O. Box 4970, Jacksonville,

FL 32232–0019

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 state CZM Plan.

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 water

quality standards or consistency with

state CZM Plans. The Corps goal is to
30782 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

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, tribes, and

EPA following publication of this

proposal to discuss issues of concern

and identify regional modifications 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 a state programmatic general

permit (SPGP) has been adopted and the

NWPs have been wholly or partially

revoked. Simultaneous with today’s

proposal, Corps Districts may be

proposing modification or revocation of

the NWP 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.

Section 401 water quality certification

requirements fall into the following

general categories:

NWPs numbered 1, 2, 8, 9, 10, 11, 24,

28 and 35 do not require 401 water

quality certification since they would

authorize activities which, in the

opinion of the Corps, could not

reasonably be expected to result in a

discharge and in the case of NWP 8 is

seaward of the territorial seas.

NWPs numbered 3, 4, 5, 6, 7, 13, 14,

19, 20, 21, 22, 23, 27, 32, 33, 36, 37, 38,

and D 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 in this category affects

only those activities which may result

in a discharge. For those activities not

involving discharges, the NWP remains

in effect.

NWPs identified as 12, 15, 16, 17, 18,

25, 26, 29, 34, 40, A, B, and C, involve

activities which would result in

discharges and therefore 401 water

quality certification is required.

If the state denies a 401 water quality

certification for certain activities within

that state, then the Corps will deny

authorization for those activities

without prejudice. Anyone wanting to

perform such activities 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 this 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

CZMA consistency determination for

certain activities, then the Corps will

deny authorization for those activities

without prejudice. Anyone wanting to

perform such activities 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 Modifications to

Existing Nationwide Permits

The proposed changes to the existing

NWPs fall into three categories:

Category I (Cat I)—Clarification of

existing NWPs to address questions and

issues that have arisen since the NWPs

were issued in 1991. It does not change

the number and types of activities now

authorized by the NWP.

Category II (Cat II)—Changes to

existing NWPs due to the modification

of the definition of discharge of dredged

material in the Excavation Rule, as

published in the Federal Register on

August 25, 1993 (58 FR 45008–38).

These NWPs involve activities that

previously only required Section 10

authorization but are now regulated

under Section 404 as well. These

proposed changes will not change the

number and type of activities now

authorized by the NWP.

Category III (Cat III)—Modifications to

existing NWPs that change the number

of activities authorized under these

NWPs.

The following is a discussion of our

reasons for modifying existing NWPs. If

an existing NWP is not listed, we are not

proposing to change it but to reissue the

current NWP.

4. Fish and Wildlife Harvesting,

Enhancement, and Attraction Devices

and Activities. (Cat I) We are clarifying

that NWP 4 does not authorize the use

of covered oyster trays or clam racks.

6. Survey Activities. (Cat III) The

Corps is proposing to allow discharges

of dredged or fill material and

placement of structures necessary to

complete a survey for historic resources,

but not for discharges or structures

necessary for the actual recovery of the

artifacts/information. The Corps is also

proposing to authorize activities

necessary to conduct soil surveys and

sampling. This NWP does not authorize

the placement of any permanent

structures.

8. Oil and Gas Structures. (Cat I) We

are clarifying that any Corps review of

this NWP, that may be required by

discretionary authority, is limited to the

effects on navigation and national

security as stated in 33 CFR 322.5(f).

12. Utility Line Discharges. (Cat I and

II) We are proposing to modify the

wording of this NWP to include the

discharge of material resulting from the

trench excavation. We are also soliciting

comments on whether limitations

should be established for discharges

into special aquatic sites. Also included

is clarification concerning parallel

structures to waterbodies and

mechanized landclearing of right-ofways for utility lines located below the

surface of waters of the United States to

the minimum necessary.

16. Return Water From Upland

Contained Disposal Areas. (Cat II) The

Corps proposes to modify the wording

of this NWP to note dredging may now

require a Section 404 permit.

18. Minor Discharges. (Cat I) We are

proposing to modify the wording of this

NWP to include the volume of any

excavated area as a measurement of the

quantity of discharge.

19. Minor Dredging. (Cat II) We are

proposing to modify this NWP to

authorize under section 404 of the Clean

Water Act, the incidental discharges

associated with the dredging activity.

However, this NWP does not apply in

Section 404 only waters. Furthermore, it

does not apply in wetlands, coral reefs,

sites that support submerged aquatic

vegetation, or anadromous fish

spawning area. NWPs 18 and 19 may be

combined in Section 10 only waters

(i.e., navigable waters of the United

States). For example, because
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30783

Notification is not required for NWP 18

under 10 cubic yards, a total of 35 cubic

yards may be excavated from a

navigable water of the U.S. (i.e., Section

10 water) using a combination of NWPs

18 and 19, without notification.

Excavation greater than 35 cubic yards

but less than 50 cubic yards require

notification.

21. Surface Coal Mining Activities.

(Cat III) We are considering expanding

this NWP for mining activities on

previously mined lands that have not

been subject to restoration. Currently,

there is a disincentive for mining

companies to use an area that has been

impacted by previous mining activities,

where wetlands have naturally

established. In such cases, mining

companies are generally required as a

condition of the permit to mitigate offsite prior to or early in the mining

operation. These previously mined areas

are generally degraded and of poor

quality. While in some cases, the

wetlands may be of good quality, the

overall area remains degraded. We are

proposing to add a provision that when

previously mined lands are used and

wetlands have naturally established,

any mitigation requirements would be

limited to onsite mitigation to occur at

the completion of the work. A

performance bond would be required to

ensure the restoration occurs. The

purpose of this provision would be to

encourage the mining of previously

mined areas that are degraded rather

than the mining of new areas. Under

this proposal, previously degraded

mined areas would be restored upon

completion of the subsequent mining

operation. We have not proposed

specific language and are seeking

comments recommending the terms and

conditions for this proposed addition to

this NWP.

25. Structural Discharges. (Cat I and

II) We are clarifying that this NWP may

be utilized for general navigation

purposes, such as the construction of

mooring cells and some excavation

activities necessary for construction of

the structure.

26. Headwaters and Isolated Waters

Discharges. (Cat III) To provide

additional time for review and to better

ensure project effects are minimal, we

are proposing to increase the 30- day

pre-construction notification (PCN)

process to a 45-day PCN. The maximum

time frame will allow for review and

evaluation of effects of a project when

necessary to ensure that the project

effects are minimal. We expect that the

increased time will only be used in a

minority of the NWP 26 PCNs and then

generally only when necessary to

analyze the acceptability of developing

adequate mitigation. We believe that the

average processing time for NWP PCNs

will continue to be under 30 days. In

addition, the Corps is considering

changing the acreage threshold limits of

NWP 26. Currently, activities that affect

less than one acre may proceed without

notifying the Corps, activities affecting 1

to 10 acres require a PCN, and activities

affecting over 10 acres may not be

authorized by this NWP. The Corps is

proposing 3 options for the acreage

limits that would define when a PCN

must be submitted. We are requesting

comments on these options which are as

follows:

Option 1: 1 to 10 acres (current thresholds)

Option 2: 1⁄2 to 5 acres

Option 3: 1⁄3 to 3 acres

Based on a survey of Corps field

offices using FY94 data, the estimated

numbers of additional activities that

would require a PCN are 3700 for

Option 2 and 5200 for Option 3

annually. However, while not required

to, many of these projects are now

requesting a verification from the Corps

without the guarantee of a decision time

frame. The PCN would provide that

guarantee. In addition, in several Corps

districts, the states have denied Section

401 water quality certifications for the

larger projects. Furthermore, in some

states, the Corps has issued state

programmatic general permits based on

state programs that have lower limits.

The Corps does not believe that this

proposal would result in many more

individual permits. The Corps

anticipates that most of these PCN

activities, as with the verification

requests that are currently being

submitted for projects impacting less

than 1 acre of waters of the United

States, will be authorized by NWP 26.

The increased review will increase

environmental protection and increase

consistency for projects below 1 acre of

effects to waters of the United States.

To offset the additional workload and

to expedite the review that either

Option 2 and 3 may generate for some

Districts, the PCN for projects affecting

between the minimum threshold (1⁄2 or 1⁄3) and 1 acre would not require

coordination with the resource agencies.

Finally, the Corps believes that this

proposal together with all the changes

proposed today will not increase the

Corps average processing time for

general permits but will provide for

increased environmental protection.

Regionalization of NWP 26: As noted

in the President’s Plan, the Corps will

initiate a process to regionalize this

NWP following a decision regarding

which threshold option is adopted. The

regionalization of NWP 26 will further

improve its effectiveness. The Corps, in

coordination with appropriate Federal,

State, Tribal agencies and the public,

will conduct a field level review for the

purpose of identifying, on a regional

basis, the types of waters and activities

that would be authorized by this NWP.

This approach was developed after

careful consideration of several

alternatives. Regionalization of NWP 26

has several advantages including the

ability to appropriately condition this

general permit to reflect the more local

environmental conditions within each

state or region, and facilitate State/

Tribal (or EPA) certification of the

permit.

The Corps recognizes that fewer than

half the states have issued section 401

certification for the existing NWP 26. As

part of the discussions that would be

initiated by the Corps districts with

their respective states, tribes, and EPA

to address issues related to Section 401

certification, the Corps would work

with the parties to determine what

modifications can be made on a regional

basis to NWP 26, in terms of acreage

limits, types of waters, notification, and

authorized activities.

27. Wetland and Riparian Restoration

and Creation Activities. (Cat II and III)

The Corps proposes to modify this NWP

to allow projects to occur on any

Federal lands. Projects occurring on

private land will still be permitted

provided there is a binding contract

between the landowner and the Federal

Government which describes the long

term management goals of the project.

Projects occurring on Federal land by

Federal agencies would be allowed after

review and approval of the Operation

and Maintenance Plan for the project.

Also, we are considering expanding this

NWP to allow for the creation of

wetlands and their subsequent reversion

on reclaimed surface coal mined lands

provided the wetlands were voluntarily

created under an Office of Surface

Mining (OSM) permit or an applicable

state program permit. OSM has

estimated that thousands of acres of

wetlands could be created each year

most of which would be left

undisturbed permanently. This would

not apply to wetlands created as

mitigation for the mining permit, nor to

wetlands or waters that would be

created due to hydrologic or

topographic features of the landscape,

and nor to wetlands created for a

mitigation bank. We have not proposed

specific language and are seeking

comments recommending the terms and

condition for this NWP.

We are also seeking comments on

whether (1) to eliminate the 5 year

window of reversion opportunity and
30784 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

allow the reversion to occur at any time

in the future; (2) to allow use of this

NWP to any voluntary restoration/

creation project; (3) to include

enhancement as an option; and (4) to

require a written agreement in all cases,

even where voluntary restoration is

occurring under other Federal or State

programs without a written agreement.

If we should require a written agreement

in such cases, who should approve it

and when? If there is no written

agreement requirement, how should the

baseline be documented and should

there be a time limit for any reversion

to take place?

29. Single-Family Housing NWP. This

NWP was published for public comment

in the March 23, 1995, Federal Register

(60 FR 15439) and became effective on

September 25, 1995 (60 FR 38650). We

are now proposing to reissue this NWP.

This will put all the NWPs on the same

five-year review cycle. We are proposing

to modify the notification process so

that it will be the same as other NWPs

and to provide for resource agency

coordination during the notification

review process. We are not, at this time,

proposing any other modifications to

this NWP. Should we not reissue NWP

29 at this time, it will remain in effect

until it expires on September 25, 2000

unless modified, suspended, or revoked

sooner.

We are, however, interested in your

comments concerning the impacts of

this NWP. We continue to believe that

this NWP provides relief to small

landowners with minimal effects on the

aquatic environment. Since its issuance,

we have tracked the use of this NWP.

For the first two quarters (October 1995–

March 1996), NWP 29 was used a total

of 123 times nationwide resulting in

only 27.1 acres of wetland impacts. This

use and acreage amount was well below

what we initially estimated. We will

continue to track the use of this NWP

to insure the effects are minimal.

32. Completed Enforcement Work.

(Cat III) The Corps is proposing several

changes to this NWP. First, we are

proposing to expand the scope beyond

judicial enforcement actions to include

agreements resulting from Corps

negotiated settlements that are not a part

of judicial actions, provided that such

final agreements satisfy the specific

criteria set out in paragraphs (i) (A)–(C)

of the proposed permit. By setting out

standards limiting the extent of the

unauthorized activity and ensuring that

the overall effect of the final agreement

is, at a minimum, no net loss of

wetlands, subpart (i) of the proposed

NWP satisfies the ‘‘minimal effects’’

threshold for issuance of NWPs. This

subpart also clarifies that obtaining an

agreement does not grant automatic

coverage under this NWP. A written

verification from the District Engineer is

required.

This expansion of NWP 32 would

eliminate a duplication of our

evaluation efforts. Currently, we begin

the enforcement action, in accordance

with 33 CFR 326, with a thorough

evaluation process, usually involving

full agency coordination. This process

often leads to an agreement which may

include restoration and mitigation. In

such cases, we then reevaluate the

action through a second evaluation

process usually leading to issuance of

an after-the-fact (ATF) permit. This

NWP would eliminate the need for the

second evaluation process for those

actions that would qualify for the NWP.

This, in turn, would reduce the need for

those ATF permits that consume permit

application processing resources

without providing an appreciable

environmental benefit. The ATF permit

process still remains a valuable tool in

the enforcement program as a way to

resolve those violations that could not

be resolved through a settlement

agreement and do not warrant judicial

action.

The other changes to this NWP apply

to both judicial decisions and

agreements and nonjudicial

administrative enforcement settlements.

They clarify that compliance with the

underlying judicial or administrative

decision or agreement is a condition of

the NWP itself and that the only future

activities authorized under this permit

are those undertaken to complete the

restoration and/or mitigation in

compliance with such decision or

agreement.

The Corps is also considering

providing that EPA administrative

settlement agreements could be

authorized under this NWP. We are

seeking comments concerning whether

this would be appropriate and if so,

what conditions, if any, would be

appropriate.

33. Temporary Construction, Access

and Dewatering. (Cat I and II) We are

proposing to add the provision from

recent guidance stating that this NWP

could be used for construction activities

not subject to either the Corps or U.S.

Coast Guard regulations. We also

propose to allow the use of on-site

dredged material for temporary fills, at

the discretion of the District Engineer.

Also, the last sentence of this NWP as

it currently exists will be deleted. As a

result of the Excavation Rule, we now

regulate both mining activities and

construction of marina basins in Section

404 areas; therefore, this provision is no

longer applicable.

38. Cleanup of Hazardous and Toxic

Waste. (Cat I) The Corps proposes to

clarify which projects approved under

CERCLA do not require authorization

under sections 10 and 404.

40. Farm Buildings. (Cat I) The

reference to the ‘‘Minimization’’

Condition is being corrected to reflect

its current title, ‘‘Mitigation’’ Condition.

We are also proposing to delete

‘‘agricultural related structures

necessary for farming activities’’ to

clarify that we intend that this NWP is

for authorization of farm buildings such

as agricultural sheds, supply storage,

animal housing, and production

facilities located on a farm or ranch.

The following is a discussion of the

new NWPs we are proposing to issue.

We have identified these NWPs by

letters for the purposes of proposing

these NWPs. If issued, they would be

placed at a reserved NWP number or

given a new number.

A. Moist Soil Management for

Wildlife. The Corps is proposing to

authorize discharges of dredged or fill

material into non-tidal wetlands

necessary to manage, construct, and/or

maintain habitat and feeding areas for

wildlife. This NWP applies to Federallyowned or managed and State-owned or

managed property. Currently, certain

management practices (discing,

plowing, mechanized land clearing, etc.)

require site specific authorization even

though the discharge of dredged

material is for the enhancement/

maintenance of the aquatic area. Some

wildlife management practices were not

consistently regulated until 1993. In an

effort to reduce the effect of the changes

on the regulation of minor activities

with only minimal adverse

environmental effects due to the

excavation rule, this proposal will allow

the management of existing wildlife

areas to proceed without unnecessary

review by various agencies. This

proposal will also further the goal of the

President’s Wetlands Plan to reduce

duplication among regulatory agencies.

This will, of course, still allow for the

use of discretionary authority when very

sensitive/unique areas may be adversely

effected by these activities.

B. Food Security Act Minimal Effect

Exemptions. As noted in the President’s

Wetland Plan, the Corps is proposing a

NWP for discharges of dredged or fill

material into waters of the United States

associated with certain minimal effect

determinations, that are exemptions

from the Food Security Act, as

determined by the Natural Resources

Conservation Service (NRCS) in

accordance with a written agreement

between the NRCS and the landowner.

This NWP also authorizes any
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30785

mitigation for these exemptions that is

required by the written agreement.

The goal of the President’s Wetland

Plan is to produce one-stop-shopping

and reduce the differences between

programs to the extent practicable. In

this regard, the Corps believes that some

NRCS exemptions would qualify for

authorization under a NWP while others

would not. We are not proposing

specific language for the NWP. We are

requesting public comments suggesting

limitations or restrictions for this NWP

in order to insure effects are minimal.

The final language would be based on

Section 322 of the 1996 Farm Bill, NRCS

regulations, and comments submitted

regarding limitations and/or thresholds

that should be established to ensure that

these activities meet the requirements

for issuance of NWPs. To assist you in

providing us comments on this NWP,

we have included the following excerpt

from Section 322 of the 1996 Farm Bill

(H.R. 2854) which discusses the

minimal effect determination:

* * *The minimal effect exemption will

apply when the Secretary (of the U.S.

Department of Agriculture) has determined

that 1 or more of the following conditions

exist:

(1) The action, individually and in

connection with all other similar actions

authorized by the Secretary in the area, will

have a minimal effect on the functional

hydrological and biological value of the

wetlands in the area, including the value to

waterfowl and wildlife.

(2) The wetland and the wetland values,

acreage, and functions are mitigated by the

person through the restoration of a converted

wetland, the enhancement of an existing

wetland, or the creation of a new wetland,

and the restoration, enhancement, or creation

is—

(A) In accordance with a wetland

conservation plan;

(B) In advance of, or concurrent with, the

action;

(C) Not at the expense of the Federal

Government;

(D) In the case of enhancement or

restoration of wetlands, on not greater than

a 1-for-1 acreage basis unless more acreage is

needed to provide equivalent functions and

values that will be lost as a result of the

wetland conversion to be mitigated;

(E) In the case of creation of wetlands, on

greater than a 1-for-1 acreage basis if more

acreage is needed to provide equivalent

functions and values that will be lost as a

result of the wetland conversion that is

mitigated;

(F) on lands in the same general area of the

local watershed as the converted wetland;

and

(G) with respect to the restored, enhanced,

or created wetland, made subject to an

easement that—

(i) Is recorded on public land records;

(ii) Remains in force for as long as the

converted wetland for which the restoration,

enhancement, or creation to be mitigated

remains in agricultural use or is not returned

to its original wetland classification with

equivalent functions and values; and

(iii) Prohibits making alterations to the

restored, enhanced, or created wetland that

lower the wetland’s functions and values.

(3) The wetland was converted after

December 23, 1985, but before November 28,

1990, and the wetland values, acreage, and

functions are mitigated by the producer

through the requirements of subparagraphs

(A), (B), (C), (D), (F) and (G) of paragraph (2).

(4) The action was authorized by a permit

issued under section 404 of the Federal

Water Pollution Control Act (33 U.S.C. 1344)

and the wetland values, acreage, and

functions of the converted wetland were

adequately mitigated for the purposes of this

subtitle.

C. Mining Operations. The Corps is

proposing to authorize certain work

and/or discharges of dredged material

incidental to active mining of sand and

gravel and recreational mining.

Paragraph a. of the proposed NWP

will allow certain operations existing

before August 1993, where the effects

have already occurred, some for many

years, to continue in some cases on a

limited basis, with minimal regulation.

Until the final excavation rule was

issued on August 25, 1993, some active

mining operations had not been

regulated under either Section 402 (EPA

jurisdiction) or Section 404 (Corps

jurisdiction). Authorization under this

NWP would be for a defined area,

would not include expansion, and

would require ‘‘Notification’’ to the

Corps. In addition, we are expressly

seeking comments on appropriate

restrictions for this NWP including

seasonal use (e.g., fish spawning),

application of best management

practices, and restrictions or

prohibitions on in-stream use. For

example, should the NWP be limited to

activities effecting less than a certain

number of acres of waters of the United

States or involving less than a certain

number of cubic yards of excavated

material annually?

Paragraph b. of the proposed NWP

would authorize recreational mining

with minimal effects either individually

or cumulatively. The potential

environmental effects of mining

operations of this nature vary

considerably throughout the country.

Therefore, we are not proposing any

nationwide specific limitations. We

believe limitations are more

appropriately established by the Corps

Districts and Division at the local level

based on public comment. The Division

Engineer is responsible for establishing

appropriate limits on recreational

mining operations within their areas of

regulatory responsibility after public

notice and opportunity for public

hearing. The Division Engineer will add

regional conditions, as necessary, to

ensure that the effects will be minimal.

This portion of the NWP will not be

effective until the Division Engineer

establishes regional limitations. On a

case-by-case basis, the District Engineer

will, if necessary, add appropriate and

practicable special conditions to ensure

that effects are minimal or will exert

discretionary authority to require an

individual permit for any activity whose

effects exceed the minimal threshold. If

you believe that NWP conditions should

be established, we welcome comments

on appropriate restrictions for this NWP

including seasonal use (e.g., fish

spawning), application of best

management practices, and limitations

on in-stream use. Again, for example,

should the NWP be limited to activities

effecting less than a certain number of

acres of waters of the United States or

a certain number of linear feet of stream

channel?

While the Corps is primarily

concerned with establishing NWP

thresholds to determine which activities

could be authorized under this NWP,

the Corps is also considering

establishing thresholds for recreational

mining, below which a Corps permit

would not be required. For recreational

mining that does not destroy or degrade

waters of the United States, a Section

404 permit is not required pursuant to

33 CFR 323.2(d)(3) of the Excavation

Rule. Recreational activities that have a

de minimis (inconsequential) effect do

not require a permit. Several Corps

District Offices have solicited comments

from the public to establish a de

minimis threshold. Other Corps districts

will also be issuing public notices to

seek public comment to establish

threshold limits for minor activities that

will not destroy or degrade aquatic

resources. Such inconsequential

activities would not require a Corps

permit.

This NWP is not to be used for peat

mining nor may it be used to access

sand and gravel through a peat deposit

that is a water of the United States. The

discharge of onshore or onboard

processed material into waters of the

U.S. is considered a Section 402

discharge and may also require a permit

under Section 402 of the Clean Water

Act. For the purpose of this NWP,

activities can be considered

‘‘recreational’’ when they are primarily

for personal enjoyment and are not

reasonably associated with or an

extension of a commercial enterprise.

For example, a commercial enterprise

where mining interests are leased, sold,

transfered, etc., to individuals to
30786 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

conduct ‘‘recreational’’ mining does not

qualify for the NWP.

D. Maintenance of Existing Flood

Control Projects. The Corps proposes to

authorize the excavation and removal of

accumulated sediment and associated

vegetation for maintenance of existing

flood control facilities including debris

basins, retention/detention basins and

channels not to exceed previously

authorized depths and configurations

provided the dredged material is

disposed of at an upland site or a

currently authorized disposal site in

waters of the United States, and proper

siltation controls are used. Prior to the

excavation rule, this activity was not

consistently regulated by the Corps.

Further, the Corps believes that, when

considering a baseline environmental

condition or the approved flood control

channel, such excavation activities will

not result in more than minimal effects.

The Corps is interested in receiving

comments regarding whether time limits

should be placed on accepting the

baseline condition of older projects that

have had little or no maintenance over

the years.

Notification to the District Engineer is

being proposed for excavation

undertaken in flood control facilities

such as unlined basins or channels that

were previously authorized, or

authorized by 33 CFR 330.3. We are

interested in receiving comments

regarding the maximum cubic yardage

to be allowed before notification is

required.

This NWP is not intended to

authorize the removal of sediment and

associated vegetation from natural water

courses for such purposes as redirecting

or conveying normal water flows. Only

channels within stretches of natural

rivers that have previously been

authorized as part of a flood control

facility would be covered under this

NWP. The Corps will consider the use

of discretionary authority when

sensitive/unique areas or significant

social or ecological functions and values

may be adversely effected or where the

maintenance may exceed present flood

control needs, such as in cases where

successive flood control projects on a

watershed have affected flood control

needs.

Discussion of Nationwide Permit

Conditions

General Conditions

The following is a discussion of our

reasons for proposing changes to some

existing NWP conditions. If an existing

NWP condition is not listed, we are not

proposing to change it.

7. Wild and Scenic Rivers. We are

proposing to modify this condition to

reduce the number of individual

permits that are needlessly processed

due to the prohibition of authorizing a

project under NWP procedures in

designated Wild and Scenic Rivers or

those in an official study status where

activities are compatible with and do

not adversely affect such rivers. The

Corps is proposing that these activities

could be allowed under NWP after

coordination with the appropriate

Federal agency with direct management

responsibility for the river and after a

determination is made by that agency

that the proposed activity will not

adversely effect the study status or the

designated Wild and Scenic River

status.

13. Notification. We are proposing to

modify the notification requirements.

We will no longer require applicants to

contact the State Historic Preservation

Officer (SHPO) and the U.S. Fish and

Wildlife Service/National Marine

Fisheries Service before submitting the

pre-construction notification PCN). We

continue to encourage applicants to

contact these agencies to obtain

information; however, the Corps will

now send the PCN to these agencies.

Many SHPOs have indicated that they

prefer not to deal directly with the

applicants. Therefore, the Corps will

coordinate with the applicants and

include the SHPO as an agency

receiving the PCN. This will insure that

the SHPO is afforded an opportunity to

provide comments prior to the decision

to authorize a project under the NWP.

The SHPO will also be held to the same

time restraints as the other agencies.

We are also proposing a change to the

notification requirements on six NWPs.

Currently, NWPs 5, 7, 13, 14, 17, 18, 21,

26, 33, 34, 37, and 38 require

coordination with the resource agencies

during the notification process. We

recently surveyed the field to determine

the effectiveness of requiring agency

coordination for these NWPs. We found

that for NWPs 14, 21, 26, 33, 37, and 38,

coordination with the resource agencies

generally generated substantive

comments and assisted us in making

sound environmental decisions.

Therefore, we will maintain the agency

coordination requirement for these

NWPs. Conversely, for NWPs 5, 7, 13,

17, 18, and 34, we did not find the same

level of substantive comments. Many

Corps districts indicated that they

received very few, if any, comments on

work proposed by these NWPs.

Therefore, we are proposing to eliminate

the requirement for agency coordination

for these NWPs except in those

circumstances where a Regional

Administrator of EPA, a Regional

Director of USFWS, or a Regional

Director of NMFS has formally

requested general notification from the

District Engineer for the activities

covered by any of these NWPs. In such

cases, the Corps will provide the

requesting agency with notification on

the particular NWPs. However, where

the agencies have a record of not

generally submitting substantive

comments on activities covered by any

of these NWPs, the Corps district may

discontinue to provide notification to

those regional agency offices.

We are also proposing to increase the

notification time period from 30 days to

45 days for NWP 26 to allow the District

Engineer sufficient time to determine

that the proposed project has minimal

adverse environmental effects for this

NWP. As part of this change, the

resource agencies will now have 7

calendar days to conduct an initial

review of the proposed action and 14

additional calendar days to submit

substantive, site-specific comments.

In addition, we are proposing

notification procedures and agency

coordination for NWP 29 and the new

NWPs C and D. We have determined

that coordination with the resource

agencies will be useful in ensuring that

projects proposed for authorization

under these NWPs have minimal

adverse environmental effects.

Notification procedures for those

NWPs are outlined under General

Condition #13 (Notification) in the

proposed rule.

Section 404 Only Condition

4. Mitigation. We have proposed

changing the wording of this condition

to clarify the phrase ‘‘unless the District

Engineer has approved a compensatory

mitigation plan for the specific

regulated activity.’’ The wording would

be changed to: ‘‘unless the District

Engineer approves a compensatory

mitigation plan that the District

Engineer determines is more beneficial

to the environment than on-site

minimization or avoidance measures.’’

Environmental Documentation

We have made a preliminary

determination that this action does not

constitute a major Federal action

significantly affecting the quality of the

human environment. Preliminary

environmental documentation has been

prepared for each proposed NWP. This

documentation includes a preliminary

environmental assessment and, where

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

Guidelines compliance review. Copies

of these documents are available for

inspection at the office of the Chief of
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30787

Engineers, at each Corps district office

and on Corps Home Page at http://

wetland.usace.mil. Based on these

documents the Corps has provisionally

determined that the proposed NWPs

comply with the requirements for

issuance under general permit authority.

Authority

We are proposing to issue new NWPs,

modify existing NWPs, and reissue

NWPs without change 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.).

Note 1: The terms ‘‘he’’ and its derivatives

used in these regulations are generic and

should be considered as applying to both

male and female.

Dated: June 7, 1996.

Stanley G. Genega,

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

Works.

Nationwide Permits and Conditions

A. Index of the Nationwide Permits and

Conditions

Nationwide Permits

1. Aids to Navigation

2. Structures in Artificial Canals

3. Maintenance

4. Fish and Wildlife Harvesting,

Enhancement, and Attraction Devices

and Activities

5. Scientific Measurement Devices

6. Survey Activities

7. Outfall Structures

8. Oil and Gas Structures

9. Structures in Fleeting and Anchorage

Areas

10. Mooring Buoys

11. Temporary Recreational Structures

12. Utility Line Backfill and Bedding

13. Bank Stabilization

14. Road Crossing

15. U.S. Coast Guard Approved Bridges

16. Return Water From Upland

Contained Disposal Areas

17. Hydropower Projects

18. Minor Discharges

19. 25 Cubic Yard Dredging

20. Oil Spill Cleanup

21. Surface Mining Activities

22. Removal of Vessels

23. Approved Categorical Exclusions

24. State Administered Section 404

Programs

25. Structural Discharge

26. Headwaters and Isolated Waters

Discharges

27. Wetland Restoration Activities

28. Modifications of Existing Marinas

29. Single-Family Housing

30. Reserved

31. Reserved

32. Completed Enforcement Actions

33. Temporary Construction and Access

34. Cranberry Production Activities

35. Maintenance Dredging of Existing

Basins

36. Boat Ramps

37. Emergency Watershed Protection

38. Cleanup of Hazardous and Toxic

Waste

39. Reserved

40. Farm Buildings

Proposed New Nationwide Permits

A. Moist Soil Management for Wildlife

B. Food Security Act Minimal Effect

Exemptions

C. Minor Mining Activities

D. Maintenance of Existing Flood

Control Projects

Nationwide Permit Conditions

General Conditions

1. Navigation

2. Proper Maintenance

3. Erosion and Siltation 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 Certification

10. Coastal Zone Management

11. Endangered Species

12. Historic Properties

13. Notification

Section 404 Only Conditions

1. Water Supply Intakes

2. Shellfish Production

3. Suitable Material

4. Mitigation

5. Spawning Areas

6. Obstruction of High Flows

7. Adverse Impacts From

Impoundments

8. Waterfowl Breeding Areas

9. Removal of Temporary Fills

B. Nationwide Permits

1. Aids to Navigation. The placement

of aids to navigation and regulatory

markers which are approved by and

installed in accordance with the

requirements of the U.S. Coast Guard.

(See 33 CFR Part 66, Chapter I,

Subchapter C). (Section 10)

2. Structures in Artificial Canals.

Structures constructed in artificial

canals within principally residential

developments where the connection of

the canal to a navigable water of the

United States has been previously

authorized (see 33 CFR 322.5(g)).

(Section 10)

3. Maintenance. 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. 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

effects 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 NWP

authorizes the repair, rehabilitation, or

replacement of those structures

destroyed by storms, floods, fire or other

discrete events, provided the repair,

rehabilitation, or replacement is

commenced or 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 NWP. (Sections 10 and 404)

4. Fish and Wildlife Harvesting,

Enhancement, and Attraction Devices

and Activities. Fish and wildlife

harvesting devices and activities such as

pound nets, crab traps, crab dredging,

eel pots, lobster traps, duck blinds, clam

and oyster digging; and small fish

attraction devices such as open water

fish concentrators (sea kites, etc.). This

NWP authorizes shellfish seeding

provided this activity does not occur in

wetlands or sites that support

submerged aquatic vegetation. This

NWP does not authorize artificial reefs

or impoundments and semiimpoundments of waters of the United

States for the culture or holding of

motile species such as lobster, or the use

of covered oyster trays or clam racks.

(Sections 10 and 404)

5. Scientific Measurement Devices.

Staff gages, tide gages, water recording

devices, water quality testing and

improvement devices and similar

structures. Small weirs and flumes

constructed primarily to record water

quantity and velocity are also

authorized provided the discharge is

limited to 25 cubic yards and further for

discharges of 10 to 25 cubic yards

provided the permittee notifies the

District Engineer in accordance with the

‘‘Notification’’ general condition.

(Sections 10 and 404)
30788 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

6. Survey Activities. Survey activities

including core sampling, seismic

exploratory operations, plugging of

seismic shot holes and other

exploratory-type bore holes, soil survey

and sampling, and historic resources

surveys. Discharges and structures

associated with the recovery of historic

resources are not authorized by this

NWP. Drilling and the discharge of

excavated material from test wells for

oil and gas exploration is not authorized

by this NWP; the plugging of such wells

is authorized. Fill placed for roads, pads

and other similar activities is not

authorized by this NWP. The discharge

of drilling muds and cuttings may

require a permit under Section 402 of

the Clean Water Act. (Sections 10 and

404)

7. Outfall Structures. Activities

related to 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), provided that the nationwide

permittee notifies the District Engineer

in accordance with the ‘‘Notification’’

general condition. (Also see 33 CFR

330.1(e)). Intake structures per se are not

included—only those directly

associated with an outfall structure.

(Sections 10 and 404)

8. Oil and Gas Structures. Structures

for the exploration, production, and

transportation of oil, gas, and minerals

on the outer continental shelf within

areas leased for such purposes by the

Department of the Interior, Minerals

Management Service. Such structures

shall not be placed within the limits of

any designated shipping safety fairway

or traffic separation scheme, except

temporary anchors that comply with the

fairway regulations in 33 CFR 322.5(l).

(Where such limits have not been

designated, or where changes are

anticipated, District Engineers will

consider asserting discretionary

authority in accordance with 33 CFR

330.4(e) and will also review such

proposals to ensure they comply with

the provisions of the fairway regulations

in 33 CFR 322.5(l). Any Corps review

under this permit will be limited to the

effects on navigation and national

security in accordance with 33 CFR

322.5(f)). Such structures will not be

placed in established danger zones or

restricted areas as designated in 33 CFR

Part 334: nor will such structures be

permitted in EPA or Corps designated

dredged material disposal areas.

(Section 10)

9. Structures in Fleeting and

Anchorage Areas. Structures, buoys,

floats and other devices placed within

anchorage or fleeting areas to facilitate

moorage of vessels where such areas

have been established for that purpose

by the U.S. Coast Guard. (Section 10)

10. Mooring Buoys. Non-commercial,

single-boat, mooring buoys. (Section 10)

11. Temporary Recreational

Structures. Temporary buoys, markers,

small floating docks, and similar

structures placed for recreational use

during specific events such as water

skiing competitions and boat races or

seasonal use provided that such

structures are removed within 30 days

after use has been discontinued. At

Corps of Engineers reservoirs, the

reservoir manager must approve each

buoy or marker individually. (Section

10)

12. Utility Line Discharges. Discharges

of dredged or fill material associated

with excavation, backfill or bedding for

utility lines, including outfall and

intake structures, 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.

The term ‘‘utility line’’ does not include

activities which drain a water of the

United States, such as drainage tile;

however, it does apply to pipes

conveying drainage from another area.

This NWP does authorize mechanized

landclearing for the installation of

subaqueous utilities (i.e., below the

surface of waters of the United States)

provided the cleared area is kept to the

minimum necessary and

preconstruction contours are

maintained. However, temporary access

roads or foundations associated with

overhead transmission lines are not

authorized by this NWP. 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 DE may

extend the period of temporary sidecasting not to exceed a total of 180 days,

where appropriate. The area of waters of

the United States that is disturbed must

be limited to the minimum necessary to

construct the utility line. Where the

utility line parallels a water of the

United States, care should be taken to

minimize disturbance of the regulated

waterbody. In wetlands, the top 6’’ to

12’’ of the trench should generally be

backfilled with topsoil from the trench.

Excess material must be removed to

upland areas immediately upon

completion of construction. Any

exposed slopes and streambanks must

be stabilized immediately upon

completion of the utility line. The

utility line itself will require a Section

10 permit if in navigable waters of the

United States. (See 33 CFR Part 322).

(Section 404)

13. Bank Stabilization. Bank

stabilization activities necessary for

erosion prevention provided:

a. No material is placed in excess of

the minimum needed for erosion

protection;

b. The bank stabilization activity is

less than 500 feet in length;

c. The activity will not exceed an

average of one cubic yard per running

foot placed along the bank below the

plane of the ordinary high water mark

or the high tide line;

d. No material is placed in any special

aquatic site, including wetlands;

e. No material is of the type or is

placed in any location or in any manner

so as to impair surface water flow into

or out of any wetland area;

f. No material is placed in a manner

that will be eroded by normal or

expected high flows (properly anchored

trees and treetops may be used in low

energy areas); and,

g. The activity is part of a single and

complete project. Bank stabilization

activities in excess of 500 feet in length

or greater than an average of one cubic

yard per running foot may be authorized

if the permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition and the

District Engineer determines the activity

complies with the other terms and

conditions of the NWP and the adverse

environmental effects are minimal both

individually and cumulatively.

(Sections 10 and 404)

14. Road Crossing. Fills for roads

crossing waters of the United States

(including wetlands and other special

aquatic sites) provided:

a. The width of the fill is limited to

the minimum necessary for the actual

crossing;

b. The fill placed in waters of the

United States is limited to a filled area

of no more than 1⁄3 acre. Furthermore,

no more than a total of 200 linear feet

of the fill for the roadway can occur in

special aquatic sites, including

wetlands;

c. The crossing is culverted, bridged

or otherwise designed to prevent the

restriction of, and to withstand,

expected high flows and tidal flows, and

to prevent the restriction of low flows

and the movement of aquatic organisms;
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30789

d. The crossing, including all

attendant features, both temporary and

permanent, is part of a single and

complete project for crossing of a water

of the United States; and,

e. For fills in special aquatic sites,

including wetlands, the permittee

notifies the District Engineer in

accordance with the ‘‘Notification’’

general condition. The notification must

also include a delineation of affected

special aquatic sites, including

wetlands. Some road fills may be

eligible for an exemption from the need

for a Section 404 permit altogether (see

33 CFR 323.4). Also, where local

circumstances indicate the need,

District Engineers will define the term

‘‘expected high flows’’ for the purpose

of establishing applicability of this

NWP. (Sections 10 and 404)

15. U.S. Coast Guard Approved

Bridges. Discharges of dredged or fill

material incidental to the construction

of bridges across navigable waters of the

United States, including cofferdams,

abutments, foundation seals, piers, and

temporary construction and access fills

provided such discharges have been

authorized by the U.S. Coast Guard as

part of the bridge permit. Causeways

and approach fills are not included in

this NWP and will require an individual

or regional Section 404 permit. (Section

404)

16. Return Water From Upland

Contained Disposal Areas. Return water

from an upland, contained dredged

material disposal area. The dredging

itself may require a Section 404 permit,

but will require a Section 10 permit if

located in navigable waters of the

United States. The return water from a

contained disposal area is

administratively defined as a discharge

of dredged material by 33 CFR 323.2(d)

even though the disposal itself occurs

on the upland and thus does not require

a Section 404 permit. This NWP

satisfies the technical requirement for a

Section 404 permit for the return water

where the quality of the return water is

controlled by the state through the

Section 401 certification procedures.

(Section 404)

17. Hydropower Projects. Discharges

of dredged or fill material associated

with (a) small hydropower projects at

existing reservoirs where the project,

which includes the fill, are licensed by

the Federal Energy Regulatory

Commission (FERC) under the Federal

Power Act of 1920, as amended; and has

a total generating capacity of not more

than 5000 KW; and the permittee

notifies the District Engineer in

accordance with the ‘‘Notification’’

general condition; or (b) hydropower

projects for which the FERC has granted

an exemption from licensing pursuant

to Section 408 of the Energy Security

Act of 1980 (16 U.S.C. 2705 and 2708)

and Section 30 of the Federal Power

Act, as amended; provided the

permittee notifies the District Engineer

in accordance with the ‘‘Notification’’

general condition. (Section 404)

18. Minor Discharges. Minor

discharges of dredged or fill material

into all waters of the United States

provided:

a. The quantity of discharged material

and the volume of excavated area does

not exceed 25 cubic yards below the

plane of the OHWM or the High Tide

Line;

b. The discharge, including any

excavated area, will not cause the loss

of more than 1⁄10 acre of a special

aquatic site, including wetlands. For the

purposes of this NWP, the acreage

limitation includes the filled area and

excavation area plus special aquatic

sites that are adversely affected by

flooding and special aquatic sites that

are drained so that they would no longer

be a water of the United States as a

result of the project;

c. If the discharge, including any

excavated area, exceeds 10 cubic yards

or the discharge is in a special aquatic

site, including wetlands, the permittee

notifies the District Engineer in

accordance with the ‘‘Notification’’

general condition. For discharges in

special aquatic sites, including

wetlands, the notification must also

include a delineation of affected special

aquatic sites, including wetlands. (Also

see 33 CFR 330.1(e)); and

d. The discharge, including all

attendant features, both temporary and

permanent, is part of a single and

complete project and is not placed for

the purpose of a stream diversion.

(Sections 10 and 404)

19. Minor Dredging. Dredging of no

more than 25 cubic yards below the

plane of the ordinary high water mark

or the mean high water mark from

navigable waters of the United States

(i.e., Section 10 actions) as part of a

single and complete project. This NWP

does not authorize the dredging or

degradation through siltation of coral

reefs, sites that support submerged

aquatic vegetation, anadromous fish

spawning areas, or wetlands or, the

connection of canals or other artificial

waterways to navigable waters of the

United States (see Section 33 CFR

322.5(g)). (Section 10 and 404)

20. Oil Spill Cleanup. Activities

required for the containment and

cleanup of oil and hazardous substances

which are subject to the National Oil

and Hazardous Substances Pollution

Contingency Plan, (40 CFR Part 300),

provided that the work is done in

accordance with the Spill Control and

Countermeasure Plan required by 40

CFR Part 112.3 and any existing State

contingency plan and provided that the

Regional Response Team (if one exists

in the area) concurs with the proposed

containment and cleanup action.

(Sections 10 and 404)

21. Surface Coal Mining Activities.

Activities associated with surface coal

mining activities provided they are

authorized by the Department of the

Interior, Office of Surface Mining, or by

states with approved programs under

Title V of the Surface Mining Control

and Reclamation Act of 1977 and

provided the permittee notifies the

District Engineer in accordance with the

‘‘Notification’’ general condition. For

discharges in special aquatic sites,

including wetlands, the notification

must also include a delineation of

affected special aquatic sites, including

wetlands. (Also see 33 CFR 330.1(e))

(Sections 10 and 404.)

Note: For the purposes of this proposed

rule, a discussion of a proposed expansion

for NWP 21 is provided in the Preamble.

22. Removal of Vessels. Temporary

structures or minor discharges of

dredged or fill material required for the

removal of wrecked, abandoned, or

disabled vessels, or the removal of manmade obstructions to navigation. This

NWP does not authorize the removal of

vessels listed or determined eligible for

listing on the National Register of

Historic Places unless the District

Engineer is notified and indicates that

there is compliance with the ‘‘Historic

Properties’’ general condition. This

NWP does not authorize maintenance

dredging, shoal removal, or river bank

snagging. Vessel disposal in waters of

the United States may need a permit

from EPA (see 40 CFR 229.3). (Sections

10 and 404)

23. Approved Categorical Exclusions.

Activities undertaken, assisted,

authorized, regulated, funded, or

financed, in whole or in part, by another

Federal agency or department where

that agency or department has

determined, pursuant to the Council on

Environmental Quality Regulation for

Implementing the Procedural Provisions

of the National Environmental Policy

Act (40 CFR Part 1500 et seq.), that the

activity, work, or discharge is

categorically excluded from

environmental documentation because

it is included within a category of

actions which neither individually nor

cumulatively have a significant effect on

the human environment, and the Office

of the Chief of Engineers (ATTN:

CECW–OR) has been furnished notice of
30790 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

the agency’s or department’s application

for the categorical exclusion and

concurs with that determination. Prior

to approval for purposes of this NWP of

any agency’s categorical exclusions, the

Chief of Engineers will solicit public

comment. In addressing these

comments, the Chief of Engineers may

require certain conditions for

authorization of an agency’s categorical

exclusions under this NWP. (Sections

10 and 404)

24. State Administered Section 404

Program. Any activity permitted by a

state administering its own Section 404

permit program pursuant to 33 U.S.C.

1344(g)–(l) is permitted pursuant to

Section 10 of the Rivers and Harbors Act

of 1899. Those activities which do not

involve a Section 404 state permit are

not included in this NWP, but certain

structures will be exempted by Section

154 of Public Law 94–587, 90 Stat. 2917

(33 U.S.C. 59l) (see 33 CFR 322.3(a)(2)).

(Section 10)

25. Structural Discharges. Discharges

of material such as concrete, sand, rock,

etc. into tightly sealed forms or cells

where the material will be used as a

structural member for standard pile

supported structures, such as bridges,

transmission line footings, and

walkways or for general navigation,

such as mooring cells, including the

excavation of bottom material from

within the form prior to the discharge of

concrete, sand, rock, etc. This NWP

does not authorize filled structural

members that would support buildings,

homes, parking areas, storage areas and

other such structures. Housepads or

other building pads are also not

included in this NWP. The structure

itself may require a Section 10 permit if

located in navigable waters of the

United States. (Section 404)

26. Headwaters and Isolated Waters

Discharges. Discharges of dredged or fill

material into headwaters and isolated

waters provided:

a. The discharge does not cause the

loss of more than 10 (5,3)* acres of

waters of the United States;

b. The permittee notifies the District

Engineer if the discharge would cause

the loss of waters of the United States

greater than 1 (1⁄2, 1⁄3)* acre in

accordance with the ‘‘Notification’’

general condition. For discharges in

special aquatic sites, including

wetlands, the notification must also

include a delineation of affected special

aquatic sites, including wetlands. (Also

see 33 CFR 330.1(e)); and

c. The discharge, including all

attendant features, both temporary and

permanent, is part of a single and

complete project.

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. The 10 (5,3)*-acre and 1 (1⁄2, 1⁄3)*-acre limits of NWP 26 are absolute,

and cannot be increased by any

mitigation plan offered by the applicant

or required by the District Engineer.

*Note: For the purposes of this proposed

rule, a discussion of acreage threshold

options being considered for NWP 26 is

provided in the Preamble.

Subdivisions: For any real estate

subdivision created or subdivided after

October 5, 1984, a notification pursuant

to subsection (b) of this NWP is required

for any discharge which would cause

the aggregate total loss of waters of the

United States for the entire subdivision

to exceed one (1) (1⁄2, 1⁄3)* acre. Any

discharge in any real estate subdivision

which would cause the aggregate total

loss of waters of the United States in the

subdivision to exceed ten (10) (5,3)*

acres is not authorized by this NWP;

unless the DE exempts a particular

subdivision or parcel by making a

written determination that: (1) the

individual and cumulative adverse

environmental effects would be minimal

and the property owner had, after

October 5, 1984, but prior to January 21,

1992, committed substantial resources

in reliance on NWP 26 with regard to a

subdivision, in circumstances where it

would be inequitable to frustrate his

investment-backed expectations, or (2)

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. Once the

exemption is established for a

subdivision, subsequent lot

development by individual property

owners may proceed using NWP 26. For

purposes of NWP 26, 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. (Section

404)

27. Wetland and Riparian Restoration

and Creation Activities. Activities in

waters of the United States associated

with the restoration of altered and

degraded non-tidal wetlands and

creation of wetlands on non-Federal

public lands and private lands in

accordance with the terms and

conditions of a binding wetland

restoration or creation agreement

between the landowner and the U.S.

Fish and Wildlife Service or the Natural

Resources Conservation Service; or

activities associated with the restoration

of altered and degraded non-tidal

wetlands, riparian areas and creation of

wetlands and riparian areas on Federal

land. Federal agencies may perform

such activities on Federal land after

review and approval of an Operations

and Maintenance Plan for the project by

the District Engineer. Such activities

include, but are not limited to:

Installation and maintenance of small

water control structures, dikes, and

berms; backfilling of existing drainage

structures; construction of small nesting

islands; plowing or discing for seed bed

preparation; and other related activities.

This NWP applies to restoration projects

that serve the purpose of restoring

‘‘natural’’ wetland hydrology,

vegetation, and function to altered and

degraded non-tidal wetlands and

‘‘natural’’ functions of riparian areas.

For agreement restoration and creation

projects only, this NWP also authorizes

any future discharge of dredged or fill

material associated with the reversion of

the area to its prior condition and use

(i.e., prior to restoration under the

agreement) within five years after

expiration of the limited term wetland

restoration or creation agreement, even

if the discharge occurs after this NWP

expires. The prior condition will be

documented in the original agreement,

and the determination of return to prior

conditions will be made by the Federal

agency executing the agreement. 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.

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.

(Sections 10 and 404)

Note: For the purposes of this proposed

rule, a discussion of an additional proposed

expansion for NWP 27 is provided in the

Preamble.

28. Modifications of Existing Marinas.

Reconfiguration of existing docking

facilities within an authorized marina

area. No dredging, additional slips or

dock spaces, or expansion of any kind

within waters of the United States is

authorized by this NWP. (Section 10)

29. Single-Family Housing. Discharges

of dredged or fill material into non-tidal

waters of the United States, including
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30791

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:

a. The discharge does not cause the

loss of more than 1⁄2 acre of non-tidal

waters of the United States, including

non-tidal wetlands;

b. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition;

c. The permittee has taken all

practicable actions to minimize the onsite and off-site effects 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 1⁄2 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; and,

g. This NWP may not be used in

conjunction with NWP 14, NWP 18, or

NWP 26, for any parcel.

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. 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, 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 his or her

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 his or her spouse in any form of

ownership.’’ (Sections 10 and 404)

30. Reserved.

31. Reserved.

32. Completed Enforcement Actions.

Any structure, work or discharge of

dredged or fill material, remaining in

place, or undertaken for mitigation,

restoration, or environmental benefit in

compliance with either:

(i) The terms of a final Corps nonjudicial settlement agreement fully

resolving a violation of section 404 of

the Clean Water Act (CWA) and/or

section 10 of the Rivers and Harbors Act

of 1899 provided that:

(a) The unauthorized activity affected

no more than 5 acres of nontidal

wetlands or 1 acre of tidal wetlands;

(b) The settlement agreement provides

for environmental benefits, to an equal

or greater degree, than the

environmental detriments caused by the

unauthorized activity; and

(c) The District Engineer issues a

verification letter authorizing the

activity subject to the terms and

conditions of this nationwide permit

and the settlement agreement, including

a specified completion date; or

(ii) The terms of a final Federal court

decision, consent decree, or settlement

agreement resulting from an

enforcement action brought by the

United States under section 404 of the

CWA and/or section 10 of the Rivers

and Harbors Act of 1899. For both (i) or

(ii) above, compliance is a condition of

the NWP itself. Any authorization under

this NWP is automatically revoked if the

permittee does not comply with the

terms of this NWP or the terms of the

court decision, consent decree, or

judicial/non-judicial settlement

agreement or fails to complete the work

by the specified completion date. This

NWP does not apply to any activities

occurring after the date of the decision,

decree, or agreement that are not for the

purpose of mitigation, restoration, or

environmental benefit. (Sections 10 and

404)

33. Temporary Construction, Access

and Dewatering. Temporary structures,

work and discharges, including

cofferdams, necessary for construction

activities or access fills or dewatering of

construction sites; provided the

associated primary activity is authorized

by the Corps of Engineers or the U.S.

Coast Guard, or for other construction

activities not subject to the Corps or

U.S. Coast Guard regulations.

Appropriate measures must be taken to

maintain near normal downstream flows

and to minimize flooding. Fill must be

of materials and placed in a manner that

will not be eroded by expected high

flows. The use of dredged material may

be allowed if determined by the District

Engineer that it will not cause more

than minimal adverse effects on aquatic

resources. Temporary fill must be

entirely removed to upland areas, or

dredged material returned to its original

location, following completion of the

construction activity and the affected

areas restored to the pre-project

conditions. Cofferdams cannot be used

to dewater wetlands or other aquatic

areas so as to change their use.

Structures left in place after cofferdams

are removed require a Section 10 permit

if located in navigable waters of the

United States. (See 33 CFR Part 322).

The permittee must notify the District

Engineer in accordance with the

‘‘Notification’’ general condition. The

notification must also include a

restoration plan of reasonable measures

to avoid and minimize effects to aquatic

resources. The District Engineer will

add special conditions, where

necessary, to ensure that adverse

environmental effects are minimal. Such

conditions may include: limiting the

temporary work to the minimum

necessary; requiring seasonal

restrictions; modifying the restoration

plan; and requiring alternative

construction methods (e.g., construction

mats in wetlands where practicable).

(Sections 10 and 404)

34. Cranberry Production Activities.

Discharges of dredged or fill material for

dikes, berms, pumps, water control

structures or leveling of cranberry beds

associated with expansion,

enhancement, or modification activities

at existing cranberry production

operations provided:

a. The cumulative total acreage of

disturbance per cranberry production

operation, including but not limited to,

filling, flooding, ditching, or clearing,

does not exceed 10 acres of waters of the

United States, including wetlands;

b. The permittee notifies the District

Engineer in accordance with the

‘‘Notification’’ general condition; and,

c. The activity does not result in a net

loss of wetland acreage.

This NWP does not authorize any

discharge of dredged or fill material

related to other cranberry production

activities such as warehouses,

processing facilities, or parking areas.

For the purposes of this NWP, the

cumulative total of 10 acres will be

measured over the period that this NWP

is valid. (Section 404)

35. Maintenance Dredging of Existing

Basins. Excavation and removal of

accumulated sediment for maintenance

of existing marina basins, canals, and

boat slips to previously authorized

depths or controlling depths for ingress/

egress, whichever is less, provided the

dredged material is disposed of at an

upland site and proper siltation controls

are used. (Section 10)

36. Boat Ramps. Activities required

for the construction of boat ramps

provided:

a. The discharge into waters of the

United States does not exceed 50 cubic
30792 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

yards of concrete, rock, crushed stone or

gravel into forms, or placement of precast concrete planks or slabs.

(Unsuitable material that causes

unacceptable chemical pollution or is

structurally unstable is not authorized);

b. The boat ramp does not exceed 20

feet in width;

c. The base material is crushed stone,

gravel or other suitable material;

d. The excavation is limited to the

area necessary for site preparation and

all excavated material is removed to the

upland; and,

e. No material is placed in special

aquatic sites, including wetlands.

Dredging to provide access to the boat

ramp may be authorized by another

NWP, regional general permit, or

individual permit pursuant to Section

10 if located in navigable waters of the

United States. (Sections 10 and 404)

37. Emergency Watershed Protection

and Rehabilitation. Work done by or

funded by the Natural Resources

Conservation Service qualifying as an

‘‘exigency’’ situation (requiring

immediate action) under its Emergency

Watershed Protection Program (7 CFR

Part 624) and work done or funded by

the Forest Service under its BurnedArea Emergency Rehabilitation

Handbook (FSH 509.13) provided the

District Engineer is notified in

accordance with the ‘‘Notification’’

general condition. (Also see 33 CFR

330.1(e)). (Sections 10 and 404)

38. Cleanup of Hazardous and Toxic

Waste. Specific activities required to

effect the containment, stabilization, or

removal of hazardous or toxic waste

materials that are performed, ordered, or

sponsored by a government agency with

established legal or regulatory authority

provided the permittee notifies the

District Engineer in accordance with the

‘‘Notification’’ general condition. For

discharges in special aquatic sites,

including wetlands, the notification

must also include a delineation of

affected special aquatic sites, including

wetlands. Court ordered remedial action

plans or related settlements are also

authorized by this NWP. This NWP does

not authorize the establishment of new

disposal sites or the expansion of

existing sites used for the disposal of

hazardous or toxic waste. Activities

undertaken by authority of CERCLA as

approved or required by EPA, are not

required to obtain permits under

Section 404 of the Clean Water Act or

Section 10 of the Rivers and Harbors

Act. (Sections 10 and 404)

39. Reserved.

40. Farm Buildings. Discharges of

dredged or fill material into

jurisdictional wetlands (but not

including prairie potholes, playa lakes,

or vernal pools) that were in agricultural

crop production prior to December 23,

1985 (i.e., farmed wetlands) for

foundations and building pads for

buildings. The discharge will be limited

to the minimum necessary but will in

no case exceed 1 acre (see the

‘‘Mitigation’’ Section 404 only

condition). (Section 404)

The following new NWPs are

proposed. For the purposes of proposing

these NWPS, we have identified them

by letters. If issued, they would be

placed at a reserved NWP number or

given a new number.

A. Moist Soil Management for

Wildlife. Discharges of dredged or fill

material associated with moist soil

management for wildlife and

maintenance activities that are

performed on non-tidal Federallyowned or managed and State-owned or

managed property, for the purpose of

continuing ongoing, site-specific,

wildlife management activities where

soil manipulation is used to manage

habitat and feeding areas for wildlife.

Such activities include, but are not

limited to: the repair, maintenance or

replacement of existing water control

structures; the repair or maintenance of

dikes; and plowing or discing to impede

succession, prepare seed beds, or

establish fire breaks. Sufficient

vegetated buffers must be maintained

adjacent to all open water bodies,

streams, etc., to preclude water quality

degradation due to erosion and

sedimentation. This NWP does not

authorize the construction of new dikes,

roads, water control structures, etc.

associated with the management areas.

This NWP does not authorize converting

wetlands to uplands or impoundments.

(Section 404)

B. Food Security Act Minimal Effect

Exemptions. (See preamble for

discussion).

C. Minor Mining Activities. Discharges

of dredged material into all waters of the

United States for the purpose of mining

minerals, aggregates, precious metals

and gems as follows:

a. Active sand and gravel mining

operations in a defined area, not

including any expansions; (i) that were

under active mining on August 25,

1993; or (ii) that were previously

authorized by a Corps individual permit

or NWP verification. (Previous

conditions imposed by the Corps will

remain in effect unless modified by the

District Engineer.) The permittee must

notify the District Engineer in

accordance with the ‘‘Notification’’

general condition. For proposed

discharges that may effect special

aquatic sites (i.e., wetlands, mudflats,

vegetated shallows, coral reefs, riffle

and pool complexes, sanctuaries and

refuges) the notification must also

include a delineation of the affected

special aquatic sites. The notification

must include evidence of active mining

of a defined area on August 25, 1993, or

a copy of the Corps permit or NWP

verification. The District Engineer will

determine the limits of the defined area

of active mining for the purposes of this

NWP. The District Engineer for specific

cases or the Division Engineer for

geographic areas, will impose quantity,

location, timing, or other restrictions, as

necessary, to ensure that the effects are

minimal.

b. Recreational mining in accordance

with limitations, including quantity,

location, timing, or other restrictions

established by the Division Engineer to

ensure that the effects are minimal. In

some cases, a pre-construction

notification will be required by the

District Engineer to ensure that the

effects are minimal. Limitations and

restrictions will be proposed by public

notice with the opportunity for public

comment and to request a public

hearing. For the purpose of this NWP,

activities can be considered

‘‘recreational’’ when they are primarily

for personal enjoyment and are not

reasonably associated with or an

extension of a commercial enterprise.

Note: This NWP does not authorize the

excavation of peat deposits that are in waters

of the United States to gain access to the

minerals, aggregates, precious metals and

gems. The discharge of material from the

onshore (or onboard) processing of dredged

material may require a permit under Section

402 of the Clean Water Act. (Sections 10 and

404)

D. Maintenance of Existing Flood

Control Projects. Maintenance of

existing flood control facilities;

including debris basins, retention/

detention basins, and channels that

were previously authorized by the Corps

by individual permit, general permit, or

by 33 CFR 330.3 or were constructed by

the Corps and transferred to a local

sponsor for operation and maintenance.

The maintenance may not exceed

previously authorized depths and

configurations. All dredged material is

placed in an upland site or a currently

authorized disposal site in waters of the

United States, and proper siltation

controls are used. The permittee must

notify the District Engineer in

accordance with the ‘‘Notification’’

general condition.

This NWP is for the maintenance of

existing flood control projects only. This

NWP does not authorize the removal of

sediment and associated vegetation from

natural water courses. (Sections 10 and

404)
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30793

C. Nationwide Permit Conditions

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. Erosion and siltation controls.

Appropriate erosion and siltation

controls must be used and maintained

in effective operating condition during

construction, and all exposed soil and

other fills 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 any

case specific conditions added by the

Corps.

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).

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 certification. In

certain states, an individual Section 401

water quality certification must be

obtained or waived (see 33 CFR

330.4(c)).

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. 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. Information on the location

of threatened and endangered species

and their critical habitat can be obtained

from the U.S. Fish and Wildlife Service

and National Marine Fisheries Service

(see 33 CFR 330.4(f)).

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 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 (or 45 days for

NWP 26) 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

number 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 14, 18, 21, 26, 29, 38,

and ‘‘C’’, the PCN must also include a

delineation of affected special aquatic

sites, including wetlands (see paragraph

13(f));

(5) For NWP 33–Temporary

Construction, Access, and Dewatering,

the PCN must also include a restoration

plan of reasonable measures to avoid

and minimize effects to aquatic

resources.

(6) For NWP 29–Single-Family

Housing, the PCN must also include:

(i) Any past use of this NWP by the

individual permittee and/or his or her

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 his or her 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-bythe-entirety) and any land on which a

purchase and sale agreement or other

contract for sale or purchase has been

executed.
30794 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices

(7) For NWP ‘‘C’’ Mining Activities

under (a), the PCN must also include:

(i) Evidence of active mining of a

defined area on August 25, 1993 or a

copy of the Corps permit or NWP

verification; and

(ii) The project plan, including the

defined area and volume of excavated

material.

(8) For NWP ‘‘D’’—Maintenance of

Existing Flood Control Projects, the

prospective permittee must either notify

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

each maintenance activity or submit a

maintenance plan, not to exceed five

years. In addition, the PCN must

include:

(i) Sufficient evidence to identify the

approved channel depths and

configurations and existing facilities.

Minor deviations are authorized

provided 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.

(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)-(8) of

General Condition 13. A letter 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 will result in more

than minimal individual or cumulative

adverse environmental effects or may be

contrary to the public interest. The

prospective permittee may, at his

option, 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 are minimal,

the District Engineer will notify the

permittee and include any agreed upon

special conditions and/or mitigation.

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 informing him 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.

(i) For NWP 14, 21, 26, 29, 33, 37, 38,

C, and D. 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. With the exception of

NWP 37, these agencies will then have

5 calendar days (7 calendar days for

NWP 26) from the date the material is

transmitted to telephone or fax the

District Engineer if they intend to

provide substantive, site-specific

comments. If so contacted by an agency,

the District Engineer will wait an

additional 10 calendar days (14 calendar

days for NWP 26) 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.

(ii) Optional Agency Coordination.

For NWPs 5, 7, 13, 17, 18, 26 (below 1

acre) and 34, where a Regional

Administrator of EPA, a Regional

Director of USFWS, or a Regional

Director of NMFS has formally

requested general notification from the

District Engineer for the activities

covered by any of these NWPs, the

Corps will provide the requesting

agency with notification on the

particular NWPs. However, where the

agencies have a record of not generally

submitting substantive comments on

activities covered by any of these NWPs,

the Corps district may discontinue to

provide notification to those regional

agency offices. The District Engineer

will coordinate with the resources

agencies to identify which activities

involving a PCN that the agencies will

provide substantive comments to the

Corps. The District Engineer may also

request comments from the agencies

when the District Engineer determines

that such comments would assist in

reaching a decision if effects are more

than minimal either individually or

cumulatively.

(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 (45 days

for NWP 26) 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

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

overall project purposes;

(ii) To the extent appropriate,

permittees should consider mitigation

banking and other forms of mitigation

including contributions to wetland trust

funds, which 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 buffer zones to protect

aquatic resource values; and replacing

the loss of aquatic resource values by

creating, restoring, and enhancing

similar functions and values. In
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Notices 30795

addition, mitigation must address

effects and cannot be 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. 5 acres of

wetlands cannot be created to change a

6-acre loss of wetlands to a 1 acre loss;

however, the 5 created acres can be used

to reduce the effects of the 6-acre loss).

Section 404 Only Conditions

In addition to the General Conditions,

the following conditions apply only to

activities that involve the discharge of

dredged or fill material and must be

followed in order for authorization by

the NWPs to be valid:

1. Water supply intakes. No discharge

of dredged or fill material may occur in

the proximity of a public water supply

intake except where the discharge is for

repair of the public water supply intake

structures or adjacent bank stabilization.

2. Shellfish production. No discharge

of dredged or fill material may occur in

areas of concentrated shellfish

production, unless the discharge is

directly related to a shellfish harvesting

activity authorized by NWP 4.

3. Suitable material. No discharge of

dredged or fill material may consist of

unsuitable material (e.g., trash, debris,

car bodies, etc.) and material discharged

must be free from toxic pollutants in

toxic amounts (see Section 307 of the

Clean Water Act).

4. Mitigation. 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), 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.

5. Spawning areas. Discharges in

spawning areas during spawning

seasons must be avoided to the

maximum extent practicable.

6. Obstruction of high flows. To the

maximum extent practicable, discharges

must not permanently restrict or impede

the passage of normal or expected high

flows or cause the relocation of the

water (unless the primary purpose of the

fill is to impound waters).

7. Adverse impacts from

impoundments. If the discharge creates

an impoundment of water, adverse

impacts 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.

8. Waterfowl breeding areas.

Discharges into breeding areas for

migratory waterfowl must be avoided to

the maximum extent practicable.

9. Removal of temporary fills. Any

temporary fills must be removed in their

entirety and the affected areas returned

to their preexisting elevation.

[FR Doc. 96–15223 Filed 6–14–96; 8:45 am]

BILLING CODE 3710–92–P