Proposal To Reissue and Modify Nationwide Permits

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Chapter II

RIN 0710-AA73

Proposal To Reissue and Modify Nationwide Permits

AGENCY:

Army Corps of Engineers, DoD.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Army Corps of Engineers (Corps) is soliciting comments for the reissuance of the existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also proposing to issue two new NWPs and one new general condition. The Corps is requesting comment on all aspects of these proposed nationwide permits. The reissuance process starts with this publication of the proposed NWPs in the

Federal Register

for a 60-day comment period. The purpose of this

Federal Register

document is to solicit comments on the proposed new and modified NWPs, as well as the NWP general conditions and definitions. Shortly after the publication of this

Federal Register

document, each Corps district will publish a public notice to solicit comments on its proposed regional conditions for these NWPs.

DATES:

Submit comments on or before August 1, 2016.

ADDRESSES:

You may submit comments, identified by docket number COE-2015-0017 and/or RIN 0710-AA73, by any of the following methods:

Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

Email:

NWP2017@usace.army.mil.

Include the docket number, COE-2015-0017, in the subject line of the message.

Mail:

U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street NW., Washington, DC 20314-1000.

Hand Delivery/Courier:

Due to security requirements, we cannot receive comments by hand delivery or courier.

As explained later, the proposed rule would establish new and revise existing information collection requirements. If you wish to comment on the information collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the

Federal Register

. Therefore, a comment to OMB on the proposed information collection requirements is best assured of having its full effect if OMB receives it by July 1, 2016.

Instructions:

If submitting comments through the Federal eRulemaking Portal, direct your comments to docket number COE-2015-0017. All comments received will be included in the public docket without change and may be made available on-line at

http://www.regulations.gov,

including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through

regulations.gov

or email. The

regulations.gov

Web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the Corps without going through

regulations.gov

your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment we recommend that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses.

Docket:

For access to the docket to read background documents or comments received, go to

regulations.gov.

All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.

FOR FURTHER INFORMATION CONTACT:

Mr. David Olson at 202-761-4922 or access the U.S. Army Corps of Engineers Regulatory Home Page at

http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. There are currently 50 NWPs. These NWPs were published in the February 21, 2012, issue of the

Federal Register

(77 FR 10184) and expire on March 18, 2017. With this

Federal Register

notice, we are beginning the process for reissuing the NWPs so that the reissued NWPs will be in effect immediately after the current NWPs expire.

Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States. The Secretary's authority to issue permits has been delegated to the Chief of Engineers and his or her designated representatives. Nationwide permits are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts (see 33 CFR part 330.1(b)). Activities authorized by NWPs and other general permits must be similar in nature, cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment (see 33 U.S.C. 1344(e)(1)). Nationwide permits can also be issued to authorize activities pursuant to Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR part 322.2(f)). The NWP program is designed to provide timely authorizations for the regulated public while protecting the Nation's aquatic resources.

The phrase “minimal adverse environmental effects when performed separately” refers to the direct and indirect adverse environmental effects caused by a specific activity authorized by an NWP. The phrase “minimal cumulative adverse effect on the environment” refers to the collective direct and indirect adverse environmental effects caused by the all the activities authorized by a particular NWP during the time period that NWP is in effect (a period of no more than 5 years) in a specific geographic region. The appropriate geographic area for assessing cumulative effects is

determined by the decision-making authority for the general permit.

When Corps Headquarters issues or reissues an NWP, it conducts a national-scale cumulative impact assessment in accordance with the National Environmental Policy Act definition of “cumulative impact” at 40 CFR 1508.7. The NEPA cumulative effects analysis prepared by Corps Headquarters for an NWP examines the impact on the environment which results from the incremental impact of its action (

i.e.,

the activities that will be authorized by that NWP) and adds that incremental impact to “other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions” (40 CFR 1508.7). In addition to environmental impacts caused by activities authorized by the NWP, other NWPs, and other types of DA permits, the Corps' NEPA cumulative effects analysis in each of its national decision documents discusses, in general terms, the environmental impacts caused by other past, present, and reasonably foreseeable future Federal, non-Federal, and private actions. For example, wetlands and other aquatic ecosystems are affected by a wide variety of Federal, non-Federal, and private actions that involve land use/land cover changes, pollution, resource extraction, species introductions and removals, and climate change (Millennium Ecosystem Assessment 2005).

Corps Headquarters fulfills the requirements of NEPA when it finalizes the environmental assessment in its national decision document for the issuance or reissuance of an NWP. An NWP verification issued by a district engineer does not require separate NEPA documentation (see 53 FR 3126, the Corps' final rule for implementing the National Environmental Policy Act, which was published in the February 3, 1986, issue of the

Federal Register

). When a district engineer issues an NWP verification, he or she is merely verifying that the activity is authorized by an NWP issued by Corps Headquarters. That verification is subject to any activity-specific conditions added to the NWP authorization by the district engineer. When reviewing a request for an NWP verification, the district engineer considers, among other factors, the “cumulative adverse environmental effects resulting from activities occurring under the NWP” (33 CFR 330.5(d)(1)).

If that NWP authorizes discharges of dredged or fill material into waters of the United States, the Corps also conducts a national-scale cumulative effects analysis in accordance with the 404(b)(1) Guidelines. The 404(b)(1) Guidelines approach to cumulative effects analysis for the issuance or reissuance of general permits is described at 40 CFR 230.7(b).

Corps Headquarters issues a decision document for each NWP, which includes a NEPA environmental assessment, a public interest review, and if applicable, a 404(b)(1) Guidelines analysis. Each NWP is a stand-alone general permit.

When the Corps issues or reissues NWPs, Corps divisions are required to prepare supplemental decision documents to provide regional analyses of the environmental effects of those NWPs. The supplemental decision documents also support the division engineer's decision on modifying, suspending, or revoking one or more NWPs in a particular region. Nationwide permits are modified on a regional basis through the addition of regional conditions, which restricts the use of the NWPs in those regions that are subject to those regional conditions. Supplemental decision documents include regional cumulative effects analyses conducted under the NEPA definition, and for those NWPs that authorize discharges of dredged or fill material into waters of the United States, regional cumulative effects analyses conducted in accordance with the 404(b)(1) guidelines approach at 40 CFR 230.7(b). The geographic regions considered in a supplemental decision document may be of cumulative adverse environmental effects are made at different geographic scales. In their supplemental decision documents, division engineers will evaluate cumulative effects of each NWP at the scale of a Corps district, state, or other geographic area, such as a watershed or ecoregion. If the division engineer is not suspending or revoking an NWP in a particular region, a supplemental decision document for an NWP includes a statement finding that the use of that NWP in the region will cause only minimal individual and cumulative adverse environmental effects.

For some NWPs, the project proponent may proceed with the NWP activity as long as he or she complies with all terms and conditions of the applicable NWP(s), including regional conditions. When required, water quality certification and/or Coastal Zone Management Act consistency concurrence must be obtained or waived (see general conditions 25 and 26, respectively). Other NWPs require project proponents to notify district engineers of their proposed activities prior to conducting regulated activities, so that district engineers can make case-specific determinations of NWP eligibility. The notification takes the form of a pre-construction notification (PCN). The purpose of a PCN is to give the district engineer an opportunity to review a proposed NWP activity (generally 45 days after receipt of a complete PCN) to ensure that the proposed activity (

i.e.,

discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States) is authorized by NWP. The PCN requirements for the NWPs are stated in the terms of those NWPs, as well as a number of general conditions, especially general condition 32. Paragraph (b) of general condition 32 lists the information required for a complete PCN. We are also proposing to develop a standard PCN form for use with the 2017 NWPs.

For the 2017 NWPs, the Corps has developed a standard form for PCNs. There will be a separate

Federal Register

notice seeking comment on the NWP PCN form. For more information on the PCN, see the “Administrative Requirements” section of this notice.

Twenty-one of the proposed NWPs require PCNs for all activities, including the two proposed new NWPs. Twelve of the proposed NWPs require PCNs for some activities authorized by those NWPs. Nineteen of the NWPs do not require PCNs, unless notification is required to comply with certain general conditions. All NWPs require PCNs for any proposed activity undertaken by a non-federal entity that might affect listed species or designated critical habitat under the Endangered Species Act (see general condition 18 and 33 CFR part 330.4(f)(2)) or any proposed activity undertaken by a non-federal entity that may have the potential to cause effects to historic properties listed, or eligible for listing in, the National Register of Historic Places (see general condition 20 and 33 CFR 330.4(g)(2)).

Except for NWPs 21, 49, and 50, and activities conducted by non-Federal permittees that require PCNs under paragraph (c) of general conditions 18 and 20, if the Corps district does not respond to the PCN within 45 days of a receipt of a complete PCN the activity is authorized by NWP (see 33 CFR 330.1(e)(1)). Regional conditions imposed by division engineers may also add PCN requirements to one or more NWPs.

When a Corps district receives a PCN, the district engineer reviews the PCN and determines whether the proposed activity will result in no more than minimal individual and cumulative

adverse environmental effects. The district engineer applies the criteria in paragraph 2 of section D, “District Engineer's Decision.” The district engineer may add conditions to the NWP authorization, including mitigation requirements, to ensure that the verified NWP activity results in no more than minimal individual and cumulative adverse environmental effects. The district engineer prepares a decision document to explain his or her conclusions. The district engineer will consider cumulative adverse environmental effects within a watershed, county, state, or a Corps district. If the applicant requests a waiver of a linear foot or other NWP limit that is allowed to be waived, and the district engineer determines, after coordinating with the agencies, that the proposed NWP activity will result in no more than minimal adverse environmental effects, the decision document explains the basis for the district engineer's decision. The decision document is part of the administrative record for the NWP verification, and may be made available through a Freedom of Information Act request submitted to the appropriate Corps district office.

Pre-construction notification requirements give the Corps the opportunity to evaluate certain proposed NWP activities on a case-by-case basis to ensure that they will cause no more than minimal adverse environmental effects, individually and cumulatively. Some NWP activities that require PCNs also require agency coordination (see paragraph (d) of general condition 32). This case-by-case review of PCNs often results in district engineers adding activity-specific conditions, including mitigation requirements, to NWP authorizations to ensure that the adverse environmental effects are no more than minimal. Mitigation requirements for NWP activities can include permit conditions (

e.g.,

time-of-year restrictions or use of best management practices) to avoid or minimize adverse effects on certain species or other resources, or compensatory mitigation requirements to offset authorized losses of jurisdictional waters and wetlands so that the net adverse environmental effects are no more than minimal. Any compensatory mitigation required for NWP activities must comply with the Corps' compensatory mitigation regulations at 33 CFR part 332. Review of a PCN may also result in the Corps district asserting discretionary authority to require an individual permit for the proposed activity, if the district engineer determines, based on the information provided in the PCN and other available information, that adverse environmental effects will be more than minimal, or there are sufficient concerns for any of the Corps public interest review factors (see 33 CFR 330.4(e)(2)). As discussed above, for NWP verifications, district engineers will assess cumulative adverse environmental effects at an appropriate regional scale. If an NWP verification includes multiple authorizations using a single NWP (

e.g.,

linear projects with crossings of separate and distant waters of the United States authorized by NWPs 12 or 14) or non-linear projects authorized with two or more different NWPs (

e.g.,

an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor dredging within that marina), the district engineer will evaluate the cumulative effects of the applicable NWPs within the appropriate geographic area.

Because the required NEPA cumulative effects and 404(b)(1) Guidelines cumulative effects analyses are conducted by Corps Headquarters in its decision documents for the issuance of the NWPs, district engineers do not need to do comprehensive cumulative effects analyses for NWP verifications. For an NWP verification, the district engineer only needs to assess the cumulative adverse environmental effects of the NWP or NWPs at the appropriate geographic scale (

e.g.,

Corps district, watershed, ecoregion) and include a statement in administrative record stating whether the proposed NWP activity, plus any required mitigation, will result in no more than minimal individual and cumulative adverse environmental effects. If the district engineer determines, after considering mitigation, that there will be more than minimal cumulative adverse environmental effects, he or she will exercise discretionary authority and require an individual permit.

Today's proposal to reissue the 50 existing NWPs with some modifications and to issue two new NWPs reflects the Corps commitment to environmental protection. We are proposing to revise the text of some of the NWPs, general conditions, and definitions so that they are clearer and can be more easily understood by the regulated public, government personnel, and interested parties while retaining terms and conditions that protect the aquatic environment. Making the text of the NWPs clearer and easier to understand will also facilitate compliance with these permits, which will also benefit the aquatic environment. The NWP program allows the Corps to authorize activities with only minimal adverse environmental impacts in a timely manner. Thus, the Corps is able to better protect the aquatic environment by focusing its limited resources on more extensive evaluations through the individual permit process focused on more rigorous evaluation of activities that have the potential for causing more severe adverse environmental effects.

Through the NWPs, the aquatic environment will also receive additional protection through regional conditions imposed by division engineers and activity-specific conditions added to NWPs by district engineers. These regional conditions and activity-specific conditions further minimize adverse environmental effects, because these conditions can only further restrict use of the NWPs. Nationwide permits also allow Corps district engineers to exercise, on a case-by-case basis, discretionary authority to require individual permits for proposed activities that may result in more than minimal individual and cumulative adverse environmental effects. Nationwide permits help protect the aquatic environment because they provide incentives to permit applicants to reduce impacts to jurisdictional waters and wetlands to meet the restrictive requirements of the NWPs and receive authorization more quickly than they would through the individual permit process. Regional general permits issued by district engineers provide similar environmental protections and incentives to project proponents.

Regional conditions may be imposed on the NWPs by division engineers to take into account regional differences in aquatic resource functions and services across the country and to restrict or prohibit the use of NWPs to protect those resources. Through regional conditions, a division engineer can modify an NWP to require submission of PCNs for certain activities. Regional conditions may also restrict or prohibit the use of an NWP in certain waters or geographic areas, if the use of that NWP in those waters or areas might result in more than minimal individual or cumulative adverse environmental effects. Regional conditions may not be less stringent than the NWPs.

A district engineer may impose activity-specific conditions on an NWP authorization to ensure that the NWP activity will result in no more than minimal individual and cumulative adverse effects on the environment and other public interest review factors. In addition, activity-specific conditions will often include mitigation requirements, including avoidance and

minimization, and possibly compensatory mitigation, to reduce the adverse environmental effects of the proposed activity so that they are no more than minimal. Compensatory mitigation requirements for NWP activities must comply with the applicable provisions of 33 CFR part 332. Compensatory mitigation may include the restoration, establishment, enhancement, and/or preservation of wetlands. Compensatory mitigation may also include the rehabilitation, enhancement, or preservation of streams, as well as the restoration, enhancement, and protection/maintenance of riparian areas next to streams and other open waters. District engineers may also require compensatory mitigation for impacts to other types of aquatic resources, such as seagrass beds, shallow sandy bottom marine areas, and coral reefs.

Compensatory mitigation can be provided through permittee-responsible mitigation, mitigation banks, or in-lieu fee programs. If the required compensatory mitigation will be provided through mitigation bank or in-lieu fee program credits, the permit conditions must comply with the requirements at 33 CFR 332.3(k)(4), and specify the number and resource type of credits that need to be secured by the permittee. If the required compensatory mitigation will be provided through permittee-responsible mitigation, the permit conditions must comply with 33 CFR 332.3(k)(3).

Process for Reissuing the NWPs

The NWPs reissued on February 13, 2012, went into effect on March 19, 2012. Those NWPs expire on March 18, 2017. The process for reissuing the NWPs for the next five-year period starts with today's publication of the proposed NWPs in the

Federal Register

for a 60-day comment period. Requests for a public hearing must be submitted in writing to the address in the

ADDRESSES

section of this notice. These requests must explain the reason or reasons why a public hearing should be held. If we determine that a public hearing or hearings would assist in making a decision on the proposed NWPs, general conditions, and definitions, a 30-day advance notice will be published in the

Federal Register

to advise interested parties of the date(s) and location(s) for the public hearing(s). Any announcement of public hearings would also be posted as a supporting document in docket number COE-2015-0017 at

www.regulations.gov

as well as the Corps Regulatory Program home page at

http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

Shortly after the publication of this

Federal Register

notice, Corps district offices will issue public notices to solicit comments on proposed regional conditions. In their district public notices, district engineers may also propose to suspend or revoke some or all of these NWPs if they have issued, or are proposing to issue, regional general permits, programmatic general permits, or section 404 letters of permission for use instead of some or all of these NWPs. The comment period for these district public notices will be 45 days.

After the comment period has ended, we will review the comments received in response to this

Federal Register

notice. Then we will draft the final NWPs, and those draft final NWPs will be subjected to another review under Executive Order 12866, Regulatory Planning and Review. The Corps will try to publish the final NWPs in the

Federal Register

approximately 90 days before the planned effective date of March 19, 2017, the day after the 2012 NWPs expire. This 90-day period provides coastal state governments the opportunity to make their Coastal Zone Management Act (CZMA) consistency determinations for these NWPs, consistent with 15 CFR 930.36(b). During this 90-day period, state governments, tribal governments, and EPA will make their Clean Water Act Section 401 water quality certifications (WQCs) for these NWPs. The CZMA/WQC and regional conditioning processes are discussed in more detail below.

Within this 90-day period, Corps districts will prepare supplemental decision documents and proposed regional conditions for approval by division engineers before the final NWPs go into effect. Supplemental decision documents address the environmental considerations related to the use of NWPs in a Corps district, state, or other geographic region. The supplemental decision documents will certify that the NWPs, with any regional conditions or geographic suspensions or revocations, will authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the environment or any relevant public interest review factor.

Existing and New Permits

Activities authorized by the 2012 NWPs remain authorized by those NWPs until March 18, 2017. An activity completed under the authorization provided by a 2012 NWP continues to be authorized by that NWP (see 33 CFR 330.6(b)). Activities authorized by the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, will have one year (

i.e.,

until March 18, 2018) to complete those activities under the terms and conditions of the 2012 NWPs (see 33 CFR 330.6(b)). Activities previously authorized by the 2012 NWPs that have not commenced or are not under contract to commence by March 18, 2017, will require reauthorization under the 2017 NWPs, provided those activities qualify for authorization under the 2017 NWPs. If those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2017 NWPs (including any regional conditions imposed by division engineers), the project proponent will need to obtain an individual permit, or seek authorization under a regional general permit, if such a general permit is available in the applicable Corps district and can be used to authorize the proposed activity.

National Environmental Policy Act Compliance

We have prepared a draft decision document for each proposed NWP. Each draft decision document contains an environmental assessment (EA). The EA includes the public interest review described in 33 CFR 320.4(b). The EA generally discusses the anticipated impacts the NWP will have on the human environment and the Corps' public interest review factors. If a proposed NWP authorizes discharges of dredged or fill material into waters of the United States, the draft decision document will also include analysis conducted pursuant to guidelines set out in section 404(b)(1) of the Clean Water Act (404(b)(1) Guidelines) in accordance with 40 CFR 230.7. These decision documents evaluate the environmental effects of each NWP from a national perspective.

The draft decision documents for the proposed NWPs are available on the internet at:

www.regulations.gov

(docket ID number COE-2015-0017) as Supporting Documents. We are soliciting comments on these draft national decision documents, and any comments received will be considered when preparing the final decision documents for the NWPs.

After the NWPs are issued or reissued, division engineers will issue supplemental decision documents to evaluate environmental effects on a regional basis (

e.g.,

state or Corps district). The supplemental decision documents are prepared by Corps districts, but must be approved and

formally issued by the appropriate division engineer, since the NWP regulations at 33 CFR 330.5(c) state that the division engineer has the authority to modify, suspend, or revoke NWP authorizations for any specific geographic area within his or her division. For some Corps districts, their geographic area of responsibility covers an entire state. For other states, there is more than one Corps district responsible for implementing the Corps Regulatory Program, including the NWP program. In those states, there is a lead Corps district responsible for preparing the supplemental decision documents for all of the NWPs. The supplemental decision documents will discuss regional conditions imposed by division engineers to protect the aquatic environment and ensure that any adverse environmental effects resulting from NWP activities in that region will be no more than minimal, individually and cumulatively.

For the NWPs, the assessment of cumulative effects occurs at three levels: National, regional, and the verification stage. Each national NWP decision document includes a national-scale NEPA cumulative effects analysis. Each supplemental decision document has a NEPA cumulative effects analysis conducted for a region, which is usually a state or Corps district. When a district engineer issues a verification letter in response to a PCN or a voluntary request for a NWP verification, the district engineer prepares a brief decision document. That decision document explains whether the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

If the NWP is not suspended or revoked in a state or a Corps district, the supplemental decision document includes a certification that the use of the NWP in that district, with any applicable regional conditions, will result in no more than minimal cumulative adverse environmental effects.

After the NWPs are issued or reissued, evaluations by a district engineer may result in a recommendation to the division engineer to modify, suspend, or revoke one or more NWPs in a particular geographic region or watershed at a later time. Such a recommendation will occur if the district engineer finds information indicating that the use of an NWP in a particular area may result in more than minimal individual or cumulative adverse environmental effects. In such cases, the division engineer will amend the applicable supplemental decision documents to account for the modification, suspension, or revocation of those NWPs.

Compliance With Section 404(e) of the Clean Water Act

The proposed NWPs are issued in accordance with section 404(e) of the Clean Water Act and 33 CFR part 330. These NWPs authorize categories of activities that are similar in nature. The “similar in nature” requirement does not mean that activities authorized by an NWP must be identical to each other. We believe that the “categories of activities that are similar in nature” requirement in Clean Water Act section 404(e) is to be interpreted broadly, for practical implementation of this general permit program.

Nationwide permits, as well as other general permits, are intended to reduce administrative burdens on the Corps and the regulated public while maintaining environmental protection, by efficiently authorizing activities that have no more than minimal adverse environmental effects, consistent with Congressional intent in the 1977 amendments to the Federal Water Pollution Control Act. Keeping the number of NWPs manageable is a key component for making the NWPs protective of the environment and streamlining the authorization process for those general categories of activities that have no more than minimal individual and cumulative adverse environmental effects.

The various terms and conditions of these NWPs, including the NWP regulations at 33 CFR 330.1(d) and 330.4(e), allow district engineers to exercise discretionary authority to modify, suspend, or revoke NWP authorizations or to require individual permits, and ensure compliance with section 404(e) of the Clean Water Act. For each NWP that may authorize discharges of dredged or fill material into waters of the United States, the national and supplemental decision documents include 404(b)(1) Guidelines analyses. These 404(b)(1) Guidelines analyses are conducted in accordance with 40 CFR part 230.7.

The 404(b)(1) Guidelines analyses in the national and supplemental decision documents also include a cumulative effects analysis, in accordance with 40 CFR 230.7(b) and 230.11(g). A 404(b)(1) Guidelines cumulative effects analysis is provided in addition to the NEPA cumulative effects analysis because the implementing regulations for NEPA and the 404(b)(1) Guidelines define “cumulative impacts” or “cumulative effects” differently.

2015 Revisions to the Definition of “Waters of the United States”

In the June 29, 2015, edition of the

Federal Register

(80 FR 37054) the U.S. Environmental Protection Agency (EPA) and the Army published a final rule amending the definition of “waters of the United States” in the Corps' regulations at 33 CFR part 328 and in a number of EPA's regulations. Numerous parties filed multiple challenges to the 2015 final rule, which currently are pending. On October 9, 2015, the United States Court of Appeals for the Sixth Circuit issued a stay of the rule pending further order of that court.

We are seeking the views of NWP users on how the 2015 revisions to the definition of “waters of the United States” might affect the applicability and efficiency of the proposed NWPs. We are also seeking comments on changes to the NWPs, general conditions, and definitions that would help ensure that activities that result in no more than minimal individual and cumulative adverse environmental effects can continue to be authorized by the NWPs. The objective of such changes is to continue to be consistent with Congressional intent for section 404(e) of the Clean Water Act, which calls for a streamlined authorization process for regulated activities with only minimal adverse environmental effects.

After the final rule defining waters of the United States was published on June 29, 2015, the Corps received letters from several entities requesting that the Corps consider increasing the acreages limits and PCN thresholds for several NWPs. One group suggested increasing the acreage limits and PCN thresholds for NWPs 12, 14, 18, 43, 51, and 52 and another group asked for increases in the acreage limits and PCN thresholds for NWPs 12, 14, 39, 43, 51, and 52. The former group recommended increasing the acreage limits of NWPs 12, 14, 43, 51, and 52 to one acre and the acreage limit of NWP 18 to

1/2

-acre. The latter group said the acreage limits of NWPs 12, 14, 39, 43, 51, and 52 should be raised to two acres. Both of these groups cited the President's Climate Action Plan and EPA's proposed Clean Power Plan as reasons to increase the acreage limits and PCN thresholds of these NWPs. They said these NWPs are important tools for meeting goals for natural gas and renewable energy production and transmission, to reduce greenhouse gas emissions. Further, they assert that new and modified infrastructure, some of which would

likely be authorized by NWPs 12, 39, 51 and 52, would need to be constructed and operational in the next several years to meet the goals in the Climate Action Plan.

1

1

Nationwide permits 3, 12, and 14 are frequently used to authorize discharges of dredged or fill material into waters of the United States and structures and work in navigable waters of the United States associated with the construction and maintenance of infrastructure, including energy and transportation infrastructure. Nationwide permits 51 and 52 authorize renewable energy projects.

Therefore, we are seeking comment on changes in the terms and conditions of the NWPs. These could include changes in acreage and linear foot limits (see below), PCN thresholds, and the use of other tools for complying with the no more than minimal adverse environmental effects requirement for NWPs and other types of general permits. Such tools include using PCNs and the activity- and site-specific review they require and retaining the

1/10

-acre threshold for requiring wetland compensatory mitigation (see paragraph (c) of general condition 23).

Acreage Limits and Pre-Construction Notification Thresholds

We are seeking comment on whether to retain the

1/2

-acre limit that has been imposed on certain NWPs (

i.e.,

NWPs 12, 14, 21, 29, 39, 42, 43, 44, 50, 51, and 52), or to impose different acreage limits on these NWPs. We are seeking comment on the acreage limits in part because of the suggestions from various entities mentioned in the previous section of this notice. Another reason we are soliciting comments on the acreage limits is to help determine whether there are alternative acreage limits that would be more effective at ensuring that the NWPs continue to meet their intended purpose of providing a streamlined authorization process for activities resulting in no more than minimal individual and cumulative adverse environmental effects. Many of the NWPs listed in the previous sentence have had this

1/2

-acre limit since 2000. Nationwide permit 50 was first issued in 2007 and NWPs 51 and 52 were originally issued in 2012. We welcome comments and suggestions for higher or lower acreage limits and those comments and suggestions should include relevant data and other information that explain why the acreage limits should be changed. Different acreage limits can be suggested for NWPs that authorize different categories of activities.

Comments should explain how your recommended changes to acreage limits would help the NWP program continue to comply with Congressional intent for a streamlined process for authorizing regulated activities that result in no more than minimal individual and cumulative adverse environmental effects. The intent of Congress was articulated through the 1977 amendments to the Federal Water Pollution Control Act (33 U.S.C. 1344(e)). Commenters should consider that general permits are an important tool for protecting the environment by providing incentives to minimize impacts to jurisdictional waters and wetlands to qualify for a streamlined authorization process. If those incentives are removed by reducing the acreage limits so that designing projects to qualify for NWP authorization is no longer practical, project proponents may submit permit applications for activities with substantial adverse environmental impacts. General permits are also an important tool for managing the Corps' Regulatory Program, and allow the Corps to focus its resources on evaluating individual permit applications for proposed activities that have the potential for resulting in substantial adverse environmental impacts.

We are also soliciting comments on changing the PCN thresholds for those NWPs that require pre-construction notification. Pre-construction notifications are an important tool for ensuring that NWP activities result in only minimal and individual and cumulative adverse environmental effects. Pre-construction notifications allow district engineers to evaluate the activity- and site-specific circumstances of proposed NWP activities to decide whether those activities are eligible for NWP authorization or require individual permits. In addition, PCNs provide district engineers with the opportunity to impose activity-specific conditions on NWPs, including mitigation requirements, to comply with the statutory requirements of Section 404(e) of the Clean Water Act. Pre-construction notifications also facilitate compliance with the Endangered Species Act and the National Historic Preservation Act.

There are circumstances where requiring PCNs for all activities authorized by an NWP is not necessary to satisfy the “no more than minimal” adverse environmental effects requirement. We are soliciting comment on whether the PCN thresholds for specific NWPs should be changed to improve the efficiency of the NWP Program while maintaining strong protection of the aquatic environment and other public interest review factors relevant to the Corps' Regulatory Program.

Waivers of Certain Nationwide Permit Limits

Since 2002, certain NWPs have had a 300-linear foot limit for losses of stream bed that could be waived after a district engineer evaluates the PCN and determines that the proposed NWP activity would result in no more than minimal individual and cumulative adverse environmental effects. In the 2012 NWPs, we added a requirement that waivers of certain NWP limits could only be granted through a written determination by a district engineer concluding that the proposed NWP activity would result only in minimal adverse environmental effects. The ability to waive those limits provides flexibility in the NWPs to authorize, after an activity-specific review, activities that are specifically determined by district engineers to result in no more than minimal adverse environmental effects.

In today's proposal, the following NWPs have certain limits that can be waived with a written determination of a district engineer after review of a PCN: NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, and 52. For all these NWPs, the district engineer can only grant the waiver upon making a written determination that the NWP activity will result in only minimal adverse environmental effects. For NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, the total loss of waters of the United States, including any waivers of the 300 linear foot limit for the loss of intermittent and ephemeral stream bed, cannot exceed

1/2

-acre.

The Corps uses an internal, automated information system to track all individual permit applications and NWP verification requests, as well as verifications for regional general permits and programmatic general permits. That automated information system, known as ORM, is used to record requested amounts of impacts to jurisdictional waters and wetlands, as well as proposed compensatory mitigation. When the Corps issues an individual permit or a general permit verification, Corps district project managers record the amounts of authorized impacts and, if required, compensatory mitigation. The proposed and authorized impacts and compensatory mitigation are recorded as acres or linear feet, or both, depending on the judgment of the Corps project manager. The Corps' automated information system does not specifically track waivers for NWP verifications, but for the 2017 NWPs we will be modifying that system by adding data fields to record the use of waivers for these NWPs.

In the 2012 NWPs, agency coordination was required for any proposed activity authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 where the applicant requested a waiver of the 300 linear foot limit for the loss of intermittent or ephemeral stream bed. The agency coordination process is described in paragraph (d)(2) of the “pre-construction notification” general condition, and we are not proposing any changes to that agency coordination process. These waivers can only be issued after an activity-specific evaluation, consideration of agency comments received in response to agency coordination, and the district engineer's consideration of the nine factors for making minimal effect determinations described in paragraph D.1 in the section entitled “District Engineer's Decision” (77 FR 10184 at 10287-10288).

To gather more information on the use of waivers, we are soliciting comment on five aspects of waivers:

(1) Making changes to the numeric limits that can be waived;

(2) whether to retain the authority of district engineers to issue activity-specific waivers of certain NWP limits;

(3) whether to impose a linear foot cap on waivers to the 500 linear foot limit for NWPs 13 and proposed NWP B (

e.g.,

a total waiver amount of 1,000 linear feet), and the 20 foot limit (

e.g.,

a total waiver amount of 40 linear feet) in NWP 36;

(4) whether to impose a linear foot cap (

e.g.,

a total waiver amount of 1,000 linear feet) on losses of intermittent and ephemeral stream bed potentially eligible for waivers of the 300 linear foot limit for losses of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52; and

(5) whether to require compensatory mitigation to offset all losses of stream bed (consistent with General Condition 23(d)) authorized by waivers of the 300 linear foot limit for NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52.

Comments on suggested changes to the numeric limits above which a waiver could be issued, and comments on whether to retain or remove the waiver provisions, should be accompanied by data and other information supporting the commenter's views on these questions. If the ability for district engineers to issue waivers of certain NWP limits is removed, then individual permits would be required for proposed activities with losses of waters of the United States that exceed those limits.

NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 currently have a

1/2

-acre cap on losses of waters of the United States. Any loss of stream bed, including any losses of intermittent and ephemeral stream bed in excess of 300 linear feet that are waived upon a written determination by the district engineer after agency coordination, counts towards that

1/2

-acre limit. We are seeking comment on whether there should also be a linear foot cap on those waivers, in addition to the

1/2

-acre limit. Commenters supporting a linear foot cap on waivers for the loss of intermittent and ephemeral stream bed should provide a suggested numeric linear foot cap. Commenters should also explain how their suggested linear foot limit will help ensure that these NWPs only authorize activities with no more than minimal adverse environmental effects, and include supporting data and other information.

We are also seeking comment on whether to require compensatory mitigation for all losses of intermittent or ephemeral stream bed authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 through a district engineer's written waiver of the 300 linear foot limit. Commenters are encouraged to provide data to support their position including providing data that demonstrate that compensatory mitigation is necessary to reach a finding of minimal impact based on the criteria listed in paragraph 2, section D for specific resource types.

It is important to note that district engineers can only issue those waivers after conducting agency coordination. District engineers fully consider agency comments received during that coordination, including any agency comments recommending requiring compensatory mitigation to ensure that the net adverse environmental effects are no more than minimal. In the NWP program, district engineers require compensatory mitigation on a case-by-case basis when necessary to ensure that proposed NWP activities will result in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR part 330.1(e)(3) and general condition 23).

When making waiver decisions for NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, as well as compensatory mitigation decisions, district engineers consider the nine factors in paragraph 2 of Section D, District Engineer's Decision. The factors most relevant to compensatory mitigation decision making are: The environmental setting in the vicinity of the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (

e.g.,

partial or complete loss), the duration of the adverse effects (temporary or permanent), and the importance of the aquatic resource functions to the region (

e.g.,

watershed or ecoregion). We are soliciting comment on the appropriateness and practicability of requiring compensatory mitigation for all waivers of the 300 linear foot limit for losses of stream bed, to offset the losses of intermittent and ephemeral stream that are authorized by written waivers issued by district engineers for these NWPs. We are also seeking comments and suggestions on technical approaches for providing compensatory mitigation to offset losses of stream bed authorized by those written waivers.

Compliance With the Endangered Species Act

The Corps has determined that the NWP regulations at 33 CFR 330.4(f) and NWP general condition 18, endangered species, ensure that all activities authorized by NWPs comply with section 7 of the Endangered Species Act (ESA). Those regulations and general condition 18 require non-federal permittees to submit PCNs for any activity that might affect listed species or designated critical habitat. The Corps then evaluates the PCN and makes an effect determination for the proposed NWP activity for the purposes of ESA section 7. The Corps established the “might affect” threshold in 33 CFR 330.4(f)(2) and paragraph (c) of general condition 18 because it is more stringent than the “may affect” threshold for section 7 consultation in the U.S. Fish and Wildlife Service's (FWS) and National Marine Fisheries Service's (NMFS) ESA section 7 consultation regulations at 50 CFR part 402. The word “might” is defined as having “less probability or possibility” than the word “may” (Merriam-Webster's Collegiate Dictionary, 10th edition).

If the project proponent is required to submit a PCN and the proposed activity might affect listed species or critical habitat, the activity is not authorized by NWP until either the Corps district makes a “no effect” determination or makes a “may affect” determination and completes formal or informal ESA section 7 consultation.

When evaluating a PCN, the Corps will either make a “no effect” determination or a “may affect” determination. If the Corps makes a “may affect” determination, it will notify the non-federal applicant and the activity is not authorized by NWP until ESA Section 7 consultation has been completed. If the non-federal project

proponent does not comply with 33 CFR 330.4(f)(2) and general condition 18, and does not submit the required PCN, then the activity is not authorized by NWP. In such situations, it is an unauthorized activity and the Corps district will determine an appropriate course of action to respond to the unauthorized activity.

Federal agencies, including state agencies (

e.g.,

certain state Departments of Transportation) to which the Federal Highway Administration has assigned its responsibilities pursuant to 23 U.S.C. 327, are required to follow their own procedures for complying with Section 7 of the ESA (see 33 CFR 330.4(f)(1) and paragraph (b) of general condition 18). This includes circumstances when an NWP activity is part of a larger overall federal project or action. The federal agency's ESA section 7 compliance covers the NWP activity because it is undertaking the NWP activity and possibly other related activities that are part of a larger overall federal project or action.

On October 15, 2012, the Chief Counsel for the Corps issued a letter to the FWS and NMFS (the Services) clarifying the Corps' legal position regarding compliance with the ESA for the February 13, 2012, reissuance of 48 NWPs and the issuance of two new NWPs. That letter explained that the issuance or reissuance of the NWPs, as governed by NWP general condition 18 (which applies to every NWP and which relates to endangered and threatened species), and 33 CFR 330.4(f), results in “no effect” to listed species or critical habitat, and therefore the reissuance/issuance action itself does not require ESA section 7 consultation. Although the reissuance/issuance of the NWPs has no effect on listed species or their critical habitat and thus requires no ESA section 7 consultation, the terms and conditions of the NWPs, including general condition 18, and 33 CFR 330.4(f) ensure that ESA consultation will take place on an activity-specific basis wherever appropriate at the field level of the Corps, FWS, and NMFS. The principles discussed in the Corps' October 15, 2012, letter apply to this proposed issuance/reissuance of NWPs. Those principles are discussed in more detail below.

The only activities that are immediately authorized by NWPs are “no effect” activities under Section 7 of the ESA and its implementing regulations at 50 CFR part 402. Therefore, the issuance or reissuance of NWPs does not require ESA section 7 consultation because no activities authorized by any NWPs “may affect” listed species or critical habitat without first completing activity-specific ESA Section 7 consultations with the Services, as required by general condition 18 and 33 CFR 330.4(f). Regional programmatic ESA section 7 consultations may also be used to satisfy the requirements of the NWPs in general condition 18 and 33 CFR 330.4(f)(2) if a proposed NWP activity is covered by that regional programmatic consultation.

ESA section 7 requires each federal agency to ensure, through consultation with the Services, that “any action authorized, funded, or carried out” by that agency “is not likely to jeopardize the continued existence of listed species or adversely modify designated critical habitat.” (See 16 U.S.C. 1536(a)(2).) Accordingly, the Services' section 7 regulations specify that an action agency must ensure that the action “it authorizes,” including authorization by permit, does not cause jeopardy or adverse modification. (See 50 CFR 402.01(a) and 402.02.) Thus, in assessing application of ESA section 7 to NWPs issued or reissued by the Corps, the proper focus is on the nature and extent of the specific activities “authorized” by the NWPs and the timing of that authorization.

The issuance or reissuance of the NWPs by the Chief of Engineers imposes express limitations on activities authorized by those NWPs. These limitations are imposed by the NWP terms and conditions, including the general conditions that apply to all NWPs regardless of whether pre-construction notification is required. With respect to listed species and critical habitat, general condition 18 expressly prohibits any activity “which `may affect' a listed species or critical habitat, unless section 7 consultation addressing the effects of the proposed activity has been completed.” General condition 18 also states that if an activity “may affect” a listed species or critical habitat, a non-federal applicant must submit a PCN and “shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized.” Permit applicants that are Federal agencies should follow their own requirements for complying with the ESA (see 33 CFR 330.4(f)(1)), and if a PCN is required the district engineer will review the federal agency's ESA compliance documentation and determine whether it is sufficient to address ESA compliance for the NWP activity.

Thus, because no NWP can or does authorize an activity that may affect a listed species or critical habitat absent an activity-specific ESA section 7 consultation, and because any activity that may affect a listed species or critical habitat must undergo an activity-specific consultation before the district engineer can verify that the activity is authorized by NWP, the issuance or reissuance of NWPs has “no effect” on listed species or critical habitat. Accordingly, the action being “authorized” by the Corps (

i.e.,

the issuance or re-issuance of the NWPs themselves) has no effect on listed species or critical habitat.

To help ensure protection of listed species and critical habitat, general condition 18 establishes a higher threshold than the threshold set forth in the Services' ESA section 7 regulations for initiation of section 7 consultation. Specifically, while section 7 consultation must be initiated for any activity that “may affect” listed species or critical habitat, for non-federal permittees general condition 18 requires submission of a PCN to the Corps if “any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat” and prohibits work until “notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized.” (See paragraph (c) of general condition 18.) The PCN must “include the name(s) of the endangered or threatened species that might be affected by the proposed work or that utilize the designated critical habitat that might be affected by the proposed work.” (See paragraph (b)(7) of general condition 32.) Paragraph (f) of general condition 18 notes that information on the location of listed species and their critical habitat can be obtained from the Services directly, or from their Web sites.

General condition 18 makes it clear to project proponents that an NWP does not authorize the “take” of an endangered or threatened species. Paragraph (e) of general condition 18 also states that a separate authorization (

e.g.,

an ESA section 10 permit or a biological opinion with an “incidental take statement”) is required to take a listed species. In addition, paragraph (a) of general condition 18 states that no activity is authorized by NWP which is likely to “directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation” or “which will directly or indirectly destroy or adversely modify the critical habitat of such species.” Such activities would require district engineers to exercise their discretionary authority

and subject the proposed activity to the individual permit review process, because an activity that would jeopardize the continued existence of a listed species, or a species proposed for listing, or that would destroy or adversely modify the critical habitat of such species would not result in minimal adverse environmental effects and thus cannot be authorized by NWP.

During the process for developing regional conditions, Corps districts coordinate or consult with FWS and/or NMFS regional or field offices to identify regional conditions that can provide additional assurance of compliance with general condition 18 and 33 CFR 330.4(f)(2). Such regional conditions can add PCN requirements to one or more NWPs in areas inhabited by listed species or where designated critical habitat occurs. Regional conditions can also be used to establish time-of-year restrictions when no NWP activity can take place to ensure that individuals of listed species are not adversely affected by such activities. Corps districts will continue to consider through regional consultations, local initiatives, or other cooperative efforts additional information and measures to ensure protection of listed species and critical habitat, the requirements established by general condition 18 (which apply to all uses of all NWPs), and other provisions of the Corps regulations ensure full compliance with ESA section 7.

Corps district offices meet with local representatives of the FWS and NMFS to establish or modify existing procedures, where necessary, to ensure that the Corps has the latest information regarding the existence and location of any threatened or endangered species or their critical habitat. Corps districts can also establish, through local procedures or other means, additional safeguards that ensure compliance with the ESA. Through formal ESA section 7 consultation, or through other coordination with the FWS and/or the NMFS, as appropriate, the Corps establishes procedures to ensure that NWP activities will not jeopardize any threatened and endangered species or result in the destruction or adverse modification of designated critical habitat. Such procedures may result in the development of regional conditions added to the NWP by the division engineer, or in activity-specific conditions to be added to an NWP authorization by the district engineer.

Based on the fact that NWP issuance or reissuance has no effect on listed species or critical habitat and any activity that “may affect” listed species or critical habitat will undergo activity-specific ESA section 7 consultation, there is no requirement that the Corps undertake programmatic consultation for the NWP program. The national programmatic consultations conducted in the past for the NWP program were voluntary consultations. Regional programmatic consultation can be conducted by Corps districts and regional or local offices of the FWS and/or NMFS to provide further assurance against potential adverse effects on listed species or critical habitat, and assure other benefits to listed species or critical habitat, such as through the establishment of additional procedures, regional NWP conditions, activity-specific NWP conditions, or other safeguards that may be employed by Corps district offices based on further discussions between the Corps and the FWS and NMFS.

The programmatic ESA section 7 consultations the Corps conducted for the 2007 and 2012 NWPs were voluntary consultations. The voluntary programmatic consultation conducted with the NMFS for the 2012 NWPs resulted in a biological opinion issued on February 15, 2012, which was replaced by a new biological opinion issued on November 24, 2014, after the proposed action was modified and triggered re-initiation of that programmatic consultation. The programmatic consultation on the 2012 NWPs with the FWS did not result in a biological opinion.

In the Corps Regulatory Program's automated information system (ORM), the Corps collects data on all individual permit applications, all NWP PCNs, all voluntary requests for NWP verifications where the NWP or general conditions do not require PCNs, and all verifications of activities authorized by regional general permits. For all written authorizations issued by the Corps, the collected data include authorized impacts and required compensatory mitigation, as well as information on all consultations conducted under section 7 of the ESA. Every year, the Corps evaluates over 30,000 NWP PCNs and requests for NWP verifications when PCNs are not required, and provides written verifications for those activities when district engineers determine those activities result in no more than minimal adverse environmental effects. During the evaluation process, district engineers assess potential impacts to listed species and critical habitat and conduct section 7 consultations whenever they determine NWP activities may affect listed species or critical habitat. District engineers will exercise discretionary authority and require individual permits when proposed NWP activities will result in more than minimal adverse environmental effects.

Each year, the Corps conducts thousands of ESA section 7 consultations with the FWS and NMFS for activities authorized by NWPs. These section 7 consultations are tracked in ORM. During the period of March 19, 2012, to December 14, 2015, Corps districts conducted 1,188 formal consultations and 7,327 informal consultations for NWP activities under ESA section 7. During that time period, the Corps also used regional programmatic consultations for 7,679 NWP verifications to comply with ESA section 7. Therefore, each year NWP activities are covered by an average of more than 4,300 formal, informal, and programmatic ESA section 7 consultations with the FWS and/or NMFS.

For one of the protective measures in NMFS's 2014 biological opinion, Corps districts posted information to assist prospective NWP users in complying with general condition 18. That implementation guidance was issued on August 5, 2014, and provides general guidance to prospective permittees on whether a PCN should be submitted for a proposed NWP activity to comply with general condition 18. It also directs prospective permittees to NMFS's Web site for additional information on listed species and critical habitat under their jurisdiction. Districts coordinated that document with NMFS regional and field offices and had the option of adding region-specific information. For the 2017 NWPs, we plan to continue using that information document, and expanding it to include information on listed species and critical habitat under the jurisdiction of the FWS.

During the process for reissuing the NWPs, Corps districts will coordinate with regional and field offices of the FWS and NMFS to discuss whether new or modified regional conditions should be imposed on the NWPs to improve protection of listed species and designated critical habitat. Regional conditions must comply with the Corps' regulations for adding permit conditions (33 CFR 325.4), and the Corps decides whether suggested regional conditions identified during this coordination are appropriate for the NWPs. During this coordination, other tools, such as additional regional programmatic consultations or standard local operating procedures, might be identified to facilitate compliance with the ESA while streamlining the process for authorizing activities under the NWPs. Section 7 consultation on regional conditions only occurs when a

Corps districts makes a “may affect” determination and initiates formal or informal section 7 consultation with the FWS and/or NMFS, depending on the species that may be affected. Otherwise, the Corps district coordinates with the FWS and/or NMFS. Regional conditions, standard local operating procedures, and regional programmatic consultations are important tools for protecting listed species and critical habitat and helping to tailor the NWP program to address specific species, their habitats, and the stressors that affect those species.

Compliance With the Essential Fish Habitat Provisions of the Magnuson-Stevens Fishery Conservation and Management Act

The NWP Program's compliance with the essential fish habitat (EFH) consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act will be achieved through EFH consultations between Corps districts and NMFS regional offices. This approach continues the EFH Conservation Recommendations provided by NMFS Headquarters to Corps Headquarters in 1999 for the NWP program. Corps districts that have EFH designated within their geographic areas of responsibility will coordinate with NMFS regional offices, to the extent necessary, to develop NWP regional conditions that conserve EFH and are consistent the NMFS regional EFH Conservation Recommendations. Corps districts will conduct consultations in accordance with the EFH consultation regulations at 50 CFR 600.920.

Regional Conditioning of Nationwide Permits

Under section 404(e) of the Clean Water Act, NWPs can only be issued for those activities that result in no more than minimal individual and cumulative adverse environmental effects. For activities that require authorization under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f) have a similar requirement. An important mechanism for ensuring compliance with these requirements is regional conditions imposed by division engineers to address local environmental concerns. Coordination with federal and state agencies and Tribes, and the solicitation of public comments, assist division and district engineers in identifying and developing appropriate regional conditions for the NWPs. Effective regional conditions protect local aquatic ecosystems and other resources and helps ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the aquatic environment, and are in the public interest.

There are two types of regional conditions: (1) Corps regional conditions and (2) water quality certification/Coastal Zone Management Act consistency determination regional conditions.

Corps regional conditions may be added to NWPs by division engineers after a public notice and comment process and coordination with appropriate federal, state, and local agencies, as well as Tribes. The process for adding Corps regional conditions to the NWPs is described at 33 CFR 330.5(c).

Examples of Corps regional conditions include:

• Restricting the types of waters of the United States where the NWPs may be used (

e.g.,

fens, bogs, bottomland hardwoods, etc.) or prohibiting the use of some or all of the NWPs in those types of waters or in specific watersheds.

• Restricting or prohibiting the use of NWPs in an area covered by a Special Area Management Plan, where regional general permits are issued to authorize activities consistent with that plan that have only minimal adverse environmental effects.

• Revoking certain NWPs in a watershed or other type of geographic area (

e.g.,

a state or county).

• Adding PCN requirements to NWPs to require notification for all activities or lowering PCN thresholds, in certain watersheds or other types of geographic areas, or in certain types of waters of the United States.

• Reducing NWP acreage limits in certain types of waters of the United States or specific waterbodies, or in specific watersheds or other types of geographic regions.

• Restricting activities authorized by NWPs to certain times of the year in a particular waterbody, to minimize the adverse effects of those activities on fish or shellfish spawning, wildlife nesting, or other ecologically cyclical events.

• Conditions necessary to facilitate compliance with general condition 18, to enhance protection of listed species or critical habitat under the Endangered Species Act.

• Conditions necessary to facilitate compliance with general condition 17, to enhance protection of tribal trust resources, including natural and cultural resources and Indian lands.

• Conditions necessary for ensuring compliance with general condition 20, to protect historic properties.

• Conditions necessary to ensure that NWP activities have no more than minimal adverse effects to Essential Fish Habitat.

Corps regional conditions approved by division engineers cannot remove or reduce any of the terms and conditions of the NWPs, including general conditions. Corps regional conditions cannot lessen PCN requirements. In other words, Corps regional conditions can only be more restrictive than the NWP terms and conditions established by Corps Headquarters when it issues or reissues an NWP.

Water quality certification (WQC) regional conditions are added to the NWPs as a result of water quality certifications issued by states, Tribes, or the U.S. EPA. Regional conditions are added to the NWPs through the state Coastal Zone Management Act consistency review process. These WQC/CZMA regional conditions are reviewed by Corps division engineers to determine whether they are consistent with the Corps regulations for permit conditions at 33 CFR 325.4. Regulatory Guidance Letter 92-4, issued on September 14, 1992, provides additional guidance and information on WQC and CZMA conditions for the NWPs.

At approximately the same time as the publication of this

Federal Register

notice, each Corps district will issue an initial public notice. The public comment period for these district public notices will be 45 days. Those initial public notices will include proposed Corps regional conditions developed by our district offices, and will also request comments or suggestions for additional Corps regional conditions or modifications to the proposed Corps regional conditions.

The public notices issued by the Districts may also include, for informational purposes only, proposed conditions intended to meet the specific requirements of Tribes, states, and EPA for the purposes of obtaining WQC, and the specific requirements of states for obtaining CZMA concurrence. The WQC and CZMA reviews are separate and independent administrative review processes for the NWPs. Public comments on the Tribal, state, or EPA WQC regional conditions or state CZMA regional conditions as proposed by the districts should be sent directly to the Tribe, state, or EPA, as appropriate. The public should not send comments on proposed WQC/CZMA regional conditions to the Corps.

In response to the district's public notice, interested parties may suggest additional Corps regional conditions or changes to Corps regional conditions. They may also suggest suspension or

revocation of NWPs in certain geographic areas, such as specific watersheds or waterbodies. Such comments should include data to support the need for the suggested modifications, suspensions, or revocations of NWPs.

After the NWPs are issued or reissued, the division engineer will issue supplemental decision documents for each NWP in a specific region (

e.g.,

a state or Corps district). Each supplemental decision document will evaluate the NWP on a regional basis (

e.g.,

by Corps district geographic area of responsibility or by state) and discuss the need for NWP regional conditions for that NWP. Each supplemental decision document will also include a statement by the division engineer, which will certify that the NWP, with approved regional conditions, will authorize only those activities that will have no more than minimal individual and cumulative adverse environmental effects.

After the division engineer approves the Corps regional conditions, each Corps district will issue a final public notice for the NWPs. The final public notice will announce both the final Corps regional conditions and any final WQC/CZMA regional conditions. The final public notices will also announce the final status of water quality certifications and CZMA consistency determinations for the NWPs. Corps districts may adopt additional regional conditions after following public notice and comment procedures, if they identify a need to add or modify regional conditions. Information on regional conditions and the suspension or revocation of one or more NWPs in a particular area can be obtained from the appropriate district engineer.

In cases where a Corps district has issued a regional general permit that authorizes similar activities as one or more NWPs, during the regional conditioning process the district will clarify the use of the regional general permit versus the NWP(s). For example, the division engineer may revoke the applicable NWP(s) so that only the regional general permit is available for use to authorize those activities.

Water Quality Certification/Coastal Zone Management Act Consistency Determination for Nationwide Permits

A Tribal, State, or EPA water quality certification, or waiver thereof, is required by Section 401 of the Clean Water Act, for an activity authorized by NWP which results in a discharge into waters of the United States. In addition, any state with a federally-approved CZMA program must concur with the Corps' determination that activities authorized by NWPs which are within, or will have reasonably foreseeable effects on any land or water uses or natural resources of the state's coastal zone, are consistent with the CZMA program to the maximum extent practicable. Water quality certifications and/or CZMA consistency concurrences may be issued without conditions, issued with conditions, or denied for specific NWPs.

We believe that, in general, the activities authorized by the NWPs will not violate Tribal, state, or EPA water quality standards, other provisions of Tribal/State law, and will be consistent with state CZMA programs/enforceable policies. The NWPs are conditioned to ensure that adverse environmental effects will be no more than minimal and address the types of activities that would be routinely authorized if evaluated under the individual permit process. We recognize that in some states or Tribal lands there will be a need to add regional conditions, or individual Tribal or State review for some activities, to ensure compliance with water quality standards, other appropriate provisions of Tribal/State law, and/or consistency with the state's CZMA programs. As a practical matter, we intend to work with states and Tribes to ensure that NWPs include the necessary conditions so that they can issue water quality certifications or CZMA consistency concurrences. Therefore, each Corps district will initiate discussions with their respective Tribe(s), state(s), and regional offices of EPA, as appropriate, to discuss issues of concern and identify regional modifications and other approaches to address the scope of waters, activities, discharges, and PCNs, as appropriate, to resolve these issues.

Please note that in some states the Corps has issued state programmatic general permits (SPGPs) or regional general permits (RGPs), and within those states some or all of the NWPs may be suspended or revoked by division engineers. Concurrent with today's proposal, district engineers may be proposing suspension or revocation of the NWPs in states where SPGPs or RGPs will be used in place of some or all of the NWPs.

Section 401 of the Clean Water Act

This

Federal Register

notice serves as the Corps' application to the Tribes, States, or EPA, where appropriate, for water quality certification (WQC) of the activities authorized by these NWPs. The Tribes, States, and EPA, where appropriate, are requested to issue, deny, or waive water quality certification pursuant to 33 CFR 330.4(c) for these NWPs.

If a state denies a WQC for an NWP within that state, then the affected activities are not authorized by NWP within that state, until a project proponent obtains an individual WQC for that activity, or a waiver of WQC occurs. However, when applicants request verification of NWP activities that require individual WQC, and the Corps determines that those activities meet the terms and conditions of the NWP, the Corps will issue provisional NWP verification letters. The provisional verification letter will contain general and regional conditions as well as any activity-specific conditions the Corps determines are necessary for NWP authorization. The Corps will notify the applicant that he or she must obtain an activity-specific WQC, or waiver thereof, before he or she is authorized to start discharging dredged or fill material into waters of the United States. That is, NWP authorization will be contingent upon obtaining the necessary WQC or waiver thereof from the Tribe, State, or EPA where appropriate. Anyone wanting to perform such activities where pre-construction notification to the Corps is not required has an affirmative responsibility to first obtain an activity-specific WQC or waiver thereof from the Tribe, State, or EPA 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, to the maximum extent practicable, consistent with state CZMA programs. This determination is contingent upon the addition of state CZMA conditions and/or regional conditions, or the issuance by the state of an individual consistency concurrence, where necessary. States are requested to concur or object to the consistency determination for these NWPs following 33 CFR 330.4(d).

The Corps' CZMA consistency determination only applies to NWP authorizations for activities that are within, or affect, any land, 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 do not require the Corps' CZMA consistency determinations and thus are not contingent on a State's concurrence with the Corps' consistency determinations.

If a state objects to the Corps' CZMA consistency determination for an NWP, then the affected activities are not authorized by NWP within that state, until a project proponent obtains an individual CZMA consistency concurrence, or sufficient time (

i.e.,

six months) passes after requesting a CZMA consistency concurrence for the applicant to make a presumption of consistency, as provided in 33 CFR 330.4(d)(6). However, when applicants request NWP verifications for such activities, and the Corps determines that those activities meet the terms and conditions of the NWP, the Corps will issue provisional NWP verification letters. The provisional verification letter will contain general and regional conditions as well as any activity-specific conditions the Corps determines are necessary for the NWP authorization. The Corps will notify the applicant that he or she must obtain an activity-specific CZMA consistency concurrence before he or she is authorized to start work in waters of the United States. That is, NWP authorization will be contingent upon obtaining the necessary CZMA consistency concurrence from the State. Anyone wanting to perform such activities where pre-construction notification to the Corps is not required has an affirmative responsibility to present a CZMA consistency certification to the appropriate State agency for concurrence. Upon concurrence with such CZMA consistency certifications by the state, the activity would be authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).

Nationwide Permit Verifications

Certain NWPs require the permittee to submit a PCN, and thus request confirmation from the district engineer prior to commencing the proposed work that an NWP activity complies with the terms and conditions of an NWP. The requirement to submit a PCN is identified in the NWP text, as well as certain general conditions. General condition 18 requires non-federal permittees to submit PCNs for any proposed activity that might affect listed species or critical habitat, if listed species or critical habitat are in the vicinity of the proposed activity, or if the proposed activity is located in critical habitat. General condition 20 requires non-federal permittees to submit PCNs for any proposed activity that may have the potential to cause effects to any historic properties listed in, determined to be eligible for listing in, or potentially eligible for listing in, the National Register of Historic Places.

In the PCN, the project proponent must specify which NWP or NWPs he or she wants to use to provide the required Department of Army (DA) authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899. For voluntary NWP verification requests (where a PCN is not required), the request should also identify the NWP(s) the project proponent wants to use. The district engineer should verify the activity under those NWP(s), as long as the proposed activity complies with all applicable terms and conditions, including any applicable regional conditions imposed by the division engineer. If the proposed activity does not qualify for NWP authorization, the district engineer must exercise discretionary authority and explain why the NWP or NWPs specified by the applicant are not appropriate for authorizing the proposed activity.

Pre-construction notification requirements may be added to NWPs by division engineers through regional conditions to require PCNs for additional activities. For an activity where a PCN is not required, a project proponent may submit a PCN voluntarily, if he or she wants written confirmation that the activity is authorized by an NWP. Some project proponents submit permit applications without specifying the type of authorization they are seeking. In such cases, district engineer will review those applications and determine if the proposed activity qualifies for NWP authorization or another form of DA authorization, such as a regional general permit (see 33 CFR 330.1(f)).

In response to a PCN or a voluntary NWP verification request, the district engineer reviews the information submitted by the prospective permittee. If the district engineer determines that the activity complies with the terms and conditions of the NWP, he or she will notify the permittee. Activity-specific conditions, such as compensatory mitigation requirements, may be added to an NWP authorization to ensure that the NWP activity results in only minimal individual and cumulative adverse environmental effects. The activity-specific conditions are incorporated into the NWP verification, along with the NWP text and the NWP general conditions.

If the district engineer reviews the PCN or voluntary NWP verification request and determines that the proposed activity does not comply with the terms and conditions of an NWP, he or she will notify the project proponent and provide instructions for applying for authorization under a regional general permit or an individual permit. District engineers will respond to NWP verification requests, submitted voluntarily or as required through PCN, within 45 days of receiving a complete PCN. Except for NWPs 21, 49, and 50, and for proposed NWP activities that require Endangered Species Act Section 7 consultation and/or National Historic Preservation Act section 106 consultation, if the project proponent has not received a reply from the Corps within 45 days, he or she may assume that the project is authorized, consistent with the information provided in the PCN. For NWPs 21, 49, and 50, and for proposed NWP activities that require ESA Section 7 consultation and/or NHPA Section 106 consultation, the project proponent may not begin work before receiving a written NWP verification.

In the January 28, 2013, issue of the

Federal Register

(78 FR 5726), the Corps issued a final rule that amended the NWP regulations to allow district engineers to issue NWP verification letters that are in effect until the NWP expires, instead of two years. That rule took effect on February 27, 2013. That final rule streamlines the verification process for NWP activities.

Contact Information for Corps District Engineers

Contact information for Corps district engineers is available at the following Web page:

http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/RegulatoryContacts.aspx.

Request for Comment

We are proposing to reissue 50 nationwide permits, as well as the general conditions and definitions. We are also proposing to issue two new NWPs and one new general condition. Substantive changes to the nationwide permits, general conditions, and definitions are discussed below, but we are soliciting comments on all the nationwide permits, general conditions, and definitions as well as all NWP application procedures including the PCNs. Minor grammatical changes, the removal of redundant language, and other small changes are not discussed in the preamble below. Therefore, commenters should carefully read each proposed NWP, general condition, and definition in this notice.

Discussion of Proposed Modifications to Existing Nationwide Permits

If an existing NWP is not listed in this section of the preamble, we are proposing to reissue the NWP without changing the terms of the NWP.

NWP 3.

Maintenance.

We are proposing to modify this NWP to state that it also authorizes regulated activities associated with the removal of previously authorized structures or fills. Individual permits include a permit condition requiring modification of the permit and the removal of the authorized structure or fill if the permittee will no longer use it, and will not transfer the authorization and the structures or fills to another party. (See general condition 2 of appendix A to 33 CFR part 325.) General permits might not have a similar condition, so we are proposing to modify this NWP to authorize such removals. The proposed modification to NWP 3 would authorize the removal of the previously authorized structure or fill in those cases where authorization is required (

e.g.,

work in section 10 waters).

We are also proposing to modify paragraph (c) of this NWP to clarify that the use of temporary mats in jurisdictional waters and wetlands is also authorized by this NWP, if those mats are used to minimize impacts during regulated maintenance activities. After the timber mats are used, they are removed and the affected areas are returned to pre-construction elevations. This provision of NWP 3 would only be necessary in circumstances where the Corps district has determined that the use of such mats in jurisdictional waters and wetlands requires DA authorization.

NWP 12.

Utility Line Activities.

We are proposing to modify the “utility lines” paragraph of this NWP to clarify that the NWP authorizes discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States for crossings of those waters associated with the construction, maintenance, or repair of utility lines. This change is intended to clarify that NWP 12 does not authorize the construction, maintenance, or repair of utility lines per se. The Corps only authorizes those components of utility lines where the construction, maintenance, or repair involves activities regulated under its jurisdictional authorities (

i.e.,

section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899). Because of the proposed modification, we are proposing to remove the text in this sentence that referred to “excavation, backfill, and bedding” because those activities are covered by the more precise reference to “discharges of dredged or fill material into waters of the United States.” Some excavation activities do not require section 404 authorization.

We are also proposing to modify the definition of “utility line” to make it clear that utility lines can also include lines, such as optic cables, that communicate through the internet.

In response to a suggestion received during the period that the 2012 NWPs were in effect, we are proposing to add a paragraph to NWP 12 to authorize, to the extent that DA authorization is required, discharges of dredged or fill material into section 404 waters, and structures and work in section 10 waters, necessary to remediate inadvertent returns of drilling muds (also known as “frac-outs”) that can occur during directional drilling operations to install utility lines below jurisdictional waters and wetlands. An inadvertent return takes place when drilling fluids are released through fractures in the bedrock and flow to the surface, and possibly into a river, stream, wetland, or other type of waterbody. The entity making the suggestion expressed concerns about inconsistencies in how inadvertent returns are managed when they occur. The entity also requested that NWP 12 authorize section 404 and section 10 activities that are necessary to remediate inadvertent returns, instead of addressing the needed remediation through enforcement actions. For NWP 12 activities where there is the possibility of such inadvertent returns, district engineers may add conditions to the NWP 12 verification requiring activity-specific remediation plans to address these situations, should they occur during the installation or maintenance of the utility line.

The fluids used for directional drilling operations consist of a water-bentonite slurry. This water-bentonite mixture is not considered a toxic or hazardous substance, but it can adversely affect aquatic organisms if released into bodies of water. Because a frac-out releases a drilling fluid and that fluid is not a material that can be considered “fill material” under 33 CFR 323.2(e), the inadvertent returns of these drilling muds is not regulated under section 404 of the Clean Water Act. However, activities necessary to contain and clean up these drilling fluids may require DA authorization (

e.g.,

temporary fills in waters of the United States, or fills to repair a fracture in a stream bed). For the same reasons as the proposed modification to NWP 3, we are proposing to modify this NWP to state that the use of temporary mats in jurisdictional waters and wetlands is also authorized.

We are proposing to modify Note 1 to remove the requirement to send a copy of the PCN to the National Ocean Service, because there is no need to chart a utility in navigable waters of the United States unless it is verified as being authorized by NWP 12. Corps districts will still send copies of NWP 12 verifications, when utility lines are installed in waters charted by the National Ocean Service.

In addition, we are proposing to add three new notes to this NWP. The new proposed Note 2 explains that separate and distant crossings of waters of the United States may qualify for separate NWP authorization, consistent with past practices as codified in the NWP regulations issued on November 22, 1991 (see 56 FR 59110) and the definition of “single and complete linear project” promulgated in the 2012 NWPs. In the 1991 final rule, the Corps defined the term “single and complete project” at 33 CFR 330.2(i). In the 2012 NWPs, we clarified the long-standing practices associated with the 1991 final rule by providing separate definitions for “single and complete linear project” and “single and complete non-linear project” (see 77 FR 10184 at 10290 and the associated preamble discussion in the February 21, 2012 issue of the

Federal Register

.)

Proposed Note 2 also points prospective permittees to 33 CFR 330.6(d), which addresses the use of NWPs with individual permits, where components of a larger overall project that have independent utility might be eligible for NWP authorization while other components might require an individual permit because not all crossings of waters of the United States comply with the terms and conditions of the NWPs or regional general permits. For utility lines, § 330.6(d) applies in cases where one or more crossings for a stand-alone utility line are not eligible for NWP authorization, but the remaining crossings for the utility line could satisfy the NWP terms and conditions. If one or more separate and distant crossings of waters of the United States for a stand-alone utility line do not qualify for authorization by NWP or a regional general permit, and an individual permit is required to authorize those crossings, then all the crossings necessary to construct that stand-alone utility line would require an individual permit. A stand-alone utility line is a utility line that has independent utility and can be operated on its own to transport materials or energy from a point of origin to a terminal point.

Section 330.6(d) requires an individual permit for all regulated activities under the Clean Water Act and, if applicable, the Rivers and Harbors Act of 1899, associated with a stand-alone utility line if one or more crossings of waters of the United States

do not qualify for general permit authorization and requires an individual permit. Other utility line segments that can operate independently (

i.e.,

other stand-alone utility lines) can be authorized by NWP if all of the crossings of waters of the United States that require DA authorization are eligible for NWPs, as long as the permit decision document includes an impact analysis for the larger, overall utility line project (see 33 CFR 330.6(d)(1)).

The second new note (proposed Note 3) references the regulation (

i.e.,

33 CFR 322.5(i)) that specifies the minimum clearances required for aerial electric power transmission lines crossing navigable waters of the United States.

The third new note (proposed Note 5) states that NWP 12 authorizes utility line maintenance and repair activities that do not qualify for the Clean Water Act section 404(f)(1) exemption for maintenance of currently serviceable structures.

NWP 13.

Bank Stabilization.

We are proposing to modify the first paragraph of this NWP to clarify that it authorizes a wide variety of bank stabilization measures. This NWP has never been limited to hard structural measures, such as bulkheads and revetments, for bank stabilization. This NWP can be used to authorize vegetative bank stabilization techniques, including hybrid techniques that involve both hard materials and vegetation components (

e.g.,

bioengineering). For example, a bank may be graded and plant materials installed to stabilize portions of the bank, with rip rap placed at the bottom of the bank for toe protection. Nationwide permit 13 was first issued in 1977; it has never specified any preference for particular approaches to bank stabilization. This NWP has always had the flexibility to authorize a variety of types of bank stabilization measures.

In addition, NWP 13 is used to authorize bank stabilization activities in a variety of types of aquatic environments, such as open coasts, sheltered coasts, rivers and streams, lakes, and other types of waters. The appropriate approach for bank stabilization is dependent on site conditions, and landowners and contractors may have preferences for specific approaches. In addition, there can be a substantial amount of variation in the effectiveness of a particular bank stabilization technique across these different environments. Given that variability and the need to consider site-specific conditions and practicability when selecting an appropriate bank stabilization approach for a site, we believe it is not appropriate to modify this NWP to require the use of one technique to control bank erosion over other techniques.

We are proposing to modify paragraph (c) of this NWP to clarify that the quantity of the dredged or fill material discharged into waters of the United States must not exceed one cubic yard per running foot below the plane of the ordinary high water mark or the high tide line, as measured along the bank. Some bank stabilization techniques, such as stream barbs, may involve fills that extend from the bank to the streambed. Stream barbs are low rock sills that extend from a stream bank to cross the thalweg of the stream. In other words, not all discharges of dredged or fill material authorized by this NWP must be placed along the bank if the bank stabilization method relies on other fill configurations, and as long as discharges of dredged or fill material into waters of the United States are minimized to the maximum extent practicable.

As discussed below, we are proposing to issue a new NWP to authorize nature-based bank stabilization techniques known as living shorelines. We believe a separate NWP is appropriate to authorize structures and work in navigable waters and discharges of dredged or fill material into waters of the United States for the construction and maintenance of living shorelines. Living shorelines are effective primarily in sheltered, low- to mid- energy coasts (see the 2007 National Research Council Report entitled “Mitigating Shore Erosion along Sheltered Coasts”). In open coasts subject to higher energy regimes such as stronger wave energies and greater erosive forces, hard bank stabilization structures such as revetments and bulkheads or a combination of hard structures and soft, nature-based structures (

e.g.,

hybrid approaches described by the Systems Approach to Geomorphic Engineering (SAGE)

2

) are more effective at protecting infrastructure and buildings along those coasts. The proposed NWP for living shorelines is intended to complement NWP 13 to provide general permit authorization for these approaches to bank stabilization.

2

http://sagecoast.org/

Paragraph (a) of general condition 23 requires that NWP activities avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site (

i.e.,

on-site). Living shorelines involve filling fairly large areas of intertidal and subtidal lands or lake shorelines. The placement of sand fills for marsh plantings and the construction of stone sills and breakwaters alter shoreline habitats and require consideration of trade-offs of those habitat changes (NRC 2007). Bulkheads and other bank stabilization structures can be constructed near to or landward of the high tide line in estuarine waters, or near to or landward of the mean high water line in lakes; thus resulting in much smaller fill areas in waters of the United States or no fills in waters of the United States if they constructed outside of the Corps' jurisdiction. Additionally, we recognize that bulkheads have indirect effects on nearby jurisdictional waters and wetlands and that living shorelines can provide some important ecological functions and services. Another factor is that there are trade-offs associated with every approach to bank stabilization and those trade-offs are considered by landowners when deciding which bank stabilization approach they will be proposing if they need to obtain DA authorization. The Corps also evaluates these trade-offs when evaluating all bank stabilization proposals.

We are soliciting comments on proposed changes to NWP 13 and the proposed NWP B. We are trying to provide as much equitability as possible between NWP 13 and the new, proposed NWP for living shorelines, so that landowners can consider a variety of options. By providing an efficient authorization option, landowners have incentive to select an environmentally preferable bank stabilization option where appropriate. A few of the terms in NWPs 13 and proposed NWP B are similar. There are different PCN thresholds because living shorelines require substantial amounts of fill material, while bank stabilization methods authorized by NWP 13 involving small amounts of fill to be discharged into waters of the United States, or no discharges into special aquatic sites such as tidal wetlands and vegetated shallows, do not require PCNs.

Another factor is that the Corps' regulations have long recognized that landowners have a general right to protect their property from erosion (see 33 CFR 320.4(g)(2)). The Corps evaluates the potential for the proposed erosion protection measures to cause damage to other landowners' property, adversely affect public health and safety, adversely impact wetland values, and the Corps can inform the applicant about possible alternative methods of bank stabilization. However, that section of our regulations also states that the Corps' advice will be given only as general guidance, and must not compete with private consulting firms. In other

words, the Corps cannot mandate a specific approach to bank stabilization. Consideration must also be given to the availability of consultants and contractors qualified to design and build living shorelines. Many landowners prefer bulkheads and revetments because well-constructed bulkheads last approximately 20 years and revetments can last up to 50 years (NRC 2007).

As discussed elsewhere in this notice, we are proposing to develop a standard form for use in submitting PCNs. The proposed PCN form will include two questions for PCNs involving bank stabilization activities. The first question will ask whether the applicant has considered the use of living shorelines, if he or she is submitting a PCN for a bank stabilization activity. The second question will ask if there are consultants and contractors in the area that are qualified to design and construct living shorelines. We will also modify our automated information system to track the responses to those questions. We will use the responses to those questions during evaluations of the use of NWPs 13 and B. The Corps solicits comments on the suitability on those questions and whether other questions should be included on the form.

NWP 14.

Linear Transportation Projects.

We are proposing to add a note to this NWP similar to proposed Note 2 in NWP 12 to explain that separate and distant crossings of waters of the United States for linear projects may qualify for separate authorization by NWP. Similar to proposed Note 2 in NWP 12, the proposed Note 1 for NWP 14 references 33 CFR 330.6(d) because linear transportation projects also have to comply with the requirements of § 330.6(d). Linear transportation projects can have segments that can operate as stand-alone roads or other types of linear transportation projects. NWP 14 can authorize those segments with independent utility where each separate and distant crossing of waters of the United States qualifies for NWP authorization. If one or more separate and distant crossings of waters of the United States for a stand-alone linear transportation project does not qualify for authorization by NWP or a regional general permit, and an individual permit is required to authorize the crossings, then all the crossings necessary to construct that stand-alone linear transportation project would require an individual permit. Section 330.6(d) requires an individual permit for all regulated activities under the Clean Water Act and, if applicable, the Rivers and Harbors Act of 1899, associated with a stand-alone linear transportation projects if one or more crossings of waters of the United States do not qualify for general permit authorization and requires an individual permit. Other linear transportation project segments that can operate independently (

i.e.,

other stand-alone linear transportation projects) can be authorized by NWP if all of the crossings of waters of the United States that require DA authorization are eligible for NWPs, as long as the permit decision document includes an impact analysis for the larger, overall linear transportation project (see 33 CFR 330.6(d)(1)).

NWP 19.

Minor Dredging.

We are proposing to add a sentence requiring the dredged material to be deposited and retained at an area that has no waters of the United States, unless the district engineer specifically authorizes the placement of that dredged material into jurisdictional waters and wetlands through a separate authorization. The new sentence is intended to provide consistency with the NWPs that authorize dredging or similar activities, where the dredged or excavated material requires disposal. The NWPs that currently have that provision are: NWP 31, which authorizes the maintenance of existing flood control facilities, NWP 36 which authorizes boat ramps, and paragraph (b) of NWP 3, which authorizes the removal of accumulated sediments from the vicinity of existing structures. To protect jurisdictional waters and wetlands, dredged or excavated material should be deposited in uplands or other areas not subject to the Corps' jurisdiction, unless the district engineer issues a separate authorization to allow that dredged material to be placed in waters of the United States for a specific use, such as substrate for marsh reestablishment.

NWP 21.

Surface Coal Mining Activities.

We are proposing to remove paragraph (a) that was in the 2012 NWP 21. The proposed NWP consists of paragraph (b) of the 2012 NWP 21, with a

1/2

-acre limit for losses of non-tidal waters of the United States, a 300 linear foot limit for losses of stream bed, and a prohibition against discharges of dredged or fill material into waters of the United States for the construction of valley fills.

As discussed in the February 21, 2012,

Federal Register

notice (77 FR 10184 at 10212), paragraph (a) of the 2012 NWP 21 was intended to “provide an equitable transition to the new limits in NWP 21 and reduce burdens on the regulated public.” In that final rule, we also stated that if surface coal mining activities previously authorized by NWP 21 could not be completed before the 2012 NWP 21 expires, or within one year of that expiration date if the activity qualifies for the grandfathering provision at 33 CFR 330.6(b), then the project proponent would have to obtain an individual permit or, if available, a regional general permit authorization to complete the surface coal mining activities in waters of the United States (see 77 FR 10184 at 10209-10210).

NWP 32.

Completed Enforcement Actions.

We are proposing to modify paragraph (i)(a) of this NWP to clarify that the 5 acre and 1 acre limits apply to the areas adversely affected by the activities that remain after resolution has been achieved. These would be the net adverse effects after any required restoration was conducted to reach resolution.

NWP 33.

Temporary Construction, Access, and Dewatering.

We are proposing to modify this NWP to change the PCN threshold to require notification only for temporary construction, access, and dewatering activities in navigable waters of the United States. In the 2007 NWPs, we modified NWPs 3, 12, and 14 to authorize temporary structures, fills, and work in jurisdictional waters and wetlands to complete the authorized NWP activity. In the 2012 NWPs we added similar language to NWP 13. While those four NWPs require PCNs for certain activities, when we modified those NWPs we did not add PCN requirements specifically for temporary structures, fills, and work associated with conducting the activities authorized by those NWPs. Based on our experience with those four NWPs and to provide more efficiency in the NWP Program, we believe that it is no longer necessary to require PCNs for NWP 33 activities in section 404-only waters. We are proposing to continue to require PCNs for all NWP 33 activities in section 10 waters, to ensure that each of those activities are reviewed by district engineers on a case-by-case basis to protect navigation and other relevant public interest review factors. Division engineers can add regional conditions to this NWP to require PCNs for temporary construction, access, and dewatering activities in section 404-only waters.

Pre-construction notification will still be required for proposed activities in section 404-only waters that will be conducted by non-federal permittees, when those activities trigger the notification requirements of general condition 18, endangered species, and general condition 20, historic properties. See paragraph (c) of general condition 18 and paragraph (c) of general condition 20.

NWP 35.

Maintenance Dredging of Existing Basins.

We are proposing to modify this NWP to state that all dredged material must be placed in an area that has no waters of the United States, unless placement of the dredged material into waters of the United States is authorized by a separate DA authorization. The proposed change is intended to provide consistency with the proposed changes to NWP 19 and the text of other NWPs that authorize dredging or excavation activities. There may be some situations where disposal of the dredged material into waters of the United States is acceptable, such as using the dredged material for marsh establishment or re-establishment. The district engineer will authorize that disposal into waters of the United States through a separate DA authorization, such as another NWP, a regional general permit, or an individual permit. Please see the rationale provided above in the preamble discussion of the proposed changes to NWP 19.

NWP 39.

Commercial and Institutional Developments.

We are proposing to modify this NWP to clarify that it authorizes discharges of dredged or fill material into waters of the United States to construct wastewater treatment facilities. Wastewater treatment facilities are attendant features for commercial, industrial, and institutional facilities to hold and treat wastewater. Wastewater treatment facilities are excluded from Clean Water Act jurisdiction (see 33 CFR 328.3(b)(1)) and do not require Clean Water Act Section 404 authorization to maintain those facilities. Applicants should be aware that, consistent with current policy, designation of a portion of waters of the United States as a waste treatment system does not alter CWA jurisdiction over any waters upstream and/or adjacent to such system.

NWP 40.

Agricultural Activities.

We are not proposing any changes to this NWP. As discussed below, we are seeking comment on whether any clarifications are need for this NWP. Discharges of dredged or fill material into waters of the United States for normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices are exempt from the requirement to obtain Clean Water Act section 404 authorization, except when those activities trigger the recapture provision of Clean Water Act section 404(f)(2). Normal farming, silviculture and ranching activities that trigger the recapture provision of section 404(f)(2) can be authorized by individual or general permits. This NWP authorizes a variety of agricultural activities that involve discharges of dredged or fill material into waters of the United States, as long as those activities comply with the terms and conditions of this NWP, including the

1/2

-acre limit for losses of waters of the United States, and result in no more than minimal individual and cumulative adverse environmental effects. Nationwide permit 40 can be used to authorize discharges of dredged or fill material into waters of the United States associated with blueberry production. We are soliciting comment on whether any further clarification of NWP 40 is necessary.

NWP 41.

Reshaping Existing Drainage Ditches.

We are soliciting comment on clarifications or changes to NWP 41 that might encourage more landowners to reshape their drainage ditches to help improve local water quality, including suggestions for text to clarify the NWP for circumstances where original configuration information is not available. To facilitate the reshaping of drainage ditches to improve water quality, we are also proposing to remove the requirement to submit a PCN if more than 500 linear feet of ditch is to be reshaped.

This NWP was first issued in 2000 (65 FR 12818 at 12854, March 9, 2000). The intent of this NWP is to authorize the maintenance of drainage ditches that were constructed in waters of the United States in a manner that benefits the aquatic environment. This NWP authorizes changes to the ditch cross section by creating gentler slopes so that there is greater interaction between water in the ditch and soil and vegetation to facilitate the removal of sediment, nutrients, and chemicals from that water. However, this NWP does not authorize reshaping ditches so that they drain larger areas than the original ditch was designed to drain. In other words, this NWP allows the configuration of the ditch to be changed to improve water quality, but not increase the original geographic area drained by the ditch. Determining the original drainage area of a ditch can be accomplished by reviewing records, obtaining technical advice from consultants, or other sources of information. When evaluating compliance with this NWP, Corps district staff will use their judgment, based on such information, to determine whether the activity is in compliance with the requirement not to increase the original drainage capacity of the ditch.

We are soliciting comment on clarifications or changes to NWP 41 that might encourage more landowners to reshape their drainage ditches to help improve local water quality, including suggestions for text to clarify the NWP for circumstances where original configuration information is not available. To facilitate the reshaping of drainage ditches to improve water quality, we are also proposing to remove the requirement to submit a PCN if more than 500 linear feet of ditch is to be reshaped and are soliciting comment on that change.

NWP 43.

Stormwater Management Facilities.

We are proposing to modify the sentence that states that the maintenance of stormwater management facilities that are determined to be waste treatment systems under 33 CFR 328.3(a)(8) generally does not require a section 404 permit. That provision in the Corps' regulations refers to the waste treatment exclusion in the 1986 definition of “waters of the United States,” which appears in the last paragraph of § 328.3(a) in the 1986 final rule (see 51 FR 41250). We are proposing to change the reference to 33 CFR 328.3(a)(8) that was in the text of the 2012 NWP 43 to “33 CFR 328.3(b)(6)” because under the 2015 final rule amending the definition of “waters of the United States” that exclusion applies to “[s]tormwater control features constructed to convey, treat, or stormwater that are created in dry land” We are proposing to remove the word “generally” from this sentence, because under the 2015 final rule defining “waters of the United States,” there are no exceptions to the exclusions in 33 CFR 328.3(b) (see the first sentence of § 328.3(b)).

NWP 44.

Mining Activities.

We are proposing changes to the terms of this NWP to clarify the application of the

1/2

-acre limit for losses of waters of the United States. The mining activities authorized by this NWP often involve impacts to open waters, such as the mining of sand and gravel from large rivers. Paragraph (a) of the proposed modification states that the loss of non-tidal wetlands cannot exceed

1/2

-acre. Paragraph (b) states that the mined area in open non-tidal waters cannot exceed

1/2

-acre. Paragraph (c) limits the total impacts under paragraphs (a) and (b) to

1/2

-acre. In other words, if the proposed mining activity involves discharges of dredged or fill material into both vegetated non-tidal wetlands and open waters, the acreage loss of non-tidal wetlands plus the acreage of open waters excavated (or dredged, if the mining activity occurs in non-tidal navigable waters of the United States) cannot exceed

1/2

-acre. This modification will provide further assurance that this NWP will only

authorize activities with no more than minimal individual and cumulative adverse environmental effects. This NWP also limits the loss of stream bed to 300 linear feet, unless for intermittent and ephemeral streams the district engineer issues a waiver after coordinating with the agencies and making a written determination that the proposed activity will result in no more than minimal adverse environmental effects. The loss of non-tidal waters of the United States, plus the loss of stream bed, cannot exceed

1/2

-acre.

NWP 45.

Repair of Uplands Damaged by Discrete Events.

To provide flexibility in the use of this NWP after major flood events or other natural disasters, we are proposing to modify the PCN requirement to allow district engineers to waive the 12-month deadline for submitting PCNs. The district engineer can waive the 12-month deadline if the prospective permittee can demonstrate funding, contract, or similar delays. Such delays can occur after major storm events if the entities responsible for making decisions regarding disbursement of funds or issuing contracts are short-staffed or receive more requests than can be handled in a timely manner.

NWP 48.

Commercial Shellfish Aquaculture Activities.

We are proposing to modify this NWP to clarify that it authorizes new and continuing commercial shellfish aquaculture operations in authorized project areas. We are proposing to define the project area as the area in which the operator is authorized to conduct commercial shellfish aquaculture activities during the period the NWP is in effect. Those areas can be identified through leases or permits issued by an appropriate state or local government agency, a treaty, or any other easement, lease, deed, contract, or other legally-binding agreement which establishes an enforceable property interest for an operator. Legally-binding agreements can include agreements between operators to conduct shellfish aquaculture on various parcels within project areas in which they have the requisite interests. The proposed changes recognize that in some areas of the country, state or local authorizations are not required for commercial shellfish aquaculture activities if the subtidal or intertidal lands are privately owned. In addition, we are proposing to define a “new commercial shellfish aquaculture operation” as an operation in a project area where commercial shellfish aquaculture activities have not been conducted during the past 100 years.

In addition, we are proposing changes to this NWP to do a better job of taking into account the dynamic nature of commercial shellfish aquaculture activities and to further streamline the authorization process. During the effective period of this NWP, an operator may change the species cultivated in the project area. An operator may also utilize only certain areas in the project area, and allow other areas within the project area to be fallow. If a PCN is required for the commercial shellfish aquaculture activity, either because of the PCN thresholds in the text of the NWP, the requirements of general condition 18, or other general conditions or regional conditions, a PCN only needs to be submitted once during the period this NWP is in effect. The one-time PCN would identify the species expected to be cultivated during the period the 2017 NWP 48 is in effect, and identify the entire project area, including active and fallow areas. If unanticipated changes to the commercial shellfish operation need to occur during this period, and those changes involve activities regulated by the Corps, the operator should contact the Corps district to request a modification of the NWP verification, instead of submitting another PCN.

For the purposes of NWP 48, the project area is not limited to those areas where active commercial shellfish activities are presently occurring. The project area includes all areas in which the operator is authorized to conduct commercial shellfish aquaculture activities, as identified through a lease or permit issued by an appropriate state or local government agency, a treaty, or any other easement, lease, deed, contract, or other legally-binding agreement which establishes an enforceable property interest for the operator. The project area also includes fallow areas, as long as the fallow areas are included in the areas identified in the lease, permit, or other applicable document or agreement.

The information in a PCN must describe, in general terms, the expected plan of operation for the commercial shellfish aquaculture activity during the period this NWP is in effect. The PCN must list the species expected to be cultivated during the time frame the 2017 NWP 48 authorization is in effect, as well as the area(s) expected to be used for cultivation during that period.

We are also proposing to modify the pre-construction notification requirements for this NWP. We are proposing to remove the PCN requirement for dredge harvesting, tilling, or harrowing conducted in areas inhabited by submerged aquatic vegetation. We are proposing this modification because of the recognition in numerous studies and reports that have shown that vigorous populations of shellfish and submerged aquatic vegetation can coexist in coastal waters (

e.g.,

Dumbauld and McCoy 2015; Tallis et al. 2009) In addition, both submerged aquatic vegetation beds and oyster beds provide habitat for a wide variety of fish and invertebrate species (Hosack et al. 2006). The presence of submerged aquatic vegetation should not prevent the use of NWP 48 to authorize commercial shellfish aquaculture activities because available evidence indicates that both shellfish and submerged aquatic vegetation sustain vibrant populations in the same waterbody. If the commercial shellfish aquaculture activity might affect listed species or critical habitat, then a PCN is required under general condition 18, and the Corps will evaluate effects to submerged aquatic vegetation caused by the commercial shellfish aquaculture activity. For those on-going commercial shellfish aquaculture activities that are covered by a currently valid programmatic biological opinion, programmatic informal consultation concurrence, or activity-specific biological opinion or informal consultation concurrence, the PCN should be expeditiously reviewed by the district engineer.

We are also proposing to remove the notification requirement for changing from bottom culture to floating or suspended culture, because general condition 1 provides sufficient assurance that these activities will have no more than minimal adverse effects on navigation. A third modification to the PCN thresholds is to require PCNs for commercial shellfish aquaculture activities that will include species that have never been cultivated in the waterbody, instead of species that have not “previously” been cultivated in that waterbody. We believe the word “never” provides more clarity than the word “previously.” A fourth modification to the PCN requirements is to require PCNs for commercial shellfish aquaculture activities proposed for areas that have not been used for those activities for the past 100 years, consistent with our proposed definition of “new commercial shellfish aquaculture operations.”

For NWP 48 activities that require PCNs, either because of the terms of NWP 48 or the requirements of general condition 18 or other general or regional conditions, we are proposing to require the PCN to identify all the species that the operator plans to cultivate during the period this NWP is in effect. We are

also proposing to require PCNs to state whether suspended cultivation techniques will be used, as well as information on the general water depths in the project area. A detailed survey of water depths is not required for a PCN.

During the implementation of NWP 48, questions have been raised about the accumulation of sediment in tidal waterbodies where long lines slow water flows so that suspended sediments fall out of the water column, and whether that sediment accumulation is a regulated activity under section 404 of the Clean Water Act. Long lines are used in commercial shellfish aquaculture to grow oysters in the water column, as an alternative to bottom culture. Sediment accretion caused by long lines is not a discharge of dredged or fill material and is not regulated under section 404 of the Clean Water Act because the sediment accumulation is an indirect effect of the use of long lines. Section 404 of the Clean Water Act requires permits for point sources discharging dredged or fill material into waters of the United States, unless those activities are exempt from the requirement to obtain section 404 authorization. Sediment accretion caused by long lines is dispersed throughout the area those long lines are used, and there is no point source. With long lines, there is not a point source discharging dredged or fill material into waters of the United States.

NWP 51.

Land-Based Renewable Energy Generation Facilities.

We are proposing to split Note 1 of the 2012 NWP 51 into two notes. Note 1 explains that utility lines constructed to transfer energy from the land-based renewable energy generation facility to a distribution system, regional grid, or other facility are general considered to be linear projects. Proposed Note 2 states that if the only activities that require DA authorization are utility line crossings or road crossings, those activities should be authorized by NWPs 12 and 14, respectively, if they satisfy the terms and conditions of those NWPs.

Based on comments and questions from stakeholders, we are seeking comment on changing the PCN threshold in this NWP, which currently requires PCNs for all authorized activities. We are soliciting comment on whether changing the PCN threshold so that some NWP 51 activities can proceed without pre-construction notification would streamline the authorization process for regulated activities associated with land-based renewable energy generation facilities while still ensuring that these activities have no more than minimal adverse environmental impacts. Comments should provide a recommended PCN threshold, such as losses of waters of the United States in excess of

1/10

-acre or

1/4

-acre. Pre-construction notification would still be required for all activities that trigger the PCN requirements in general condition 18, endangered species, and general condition 20, historic properties.

NWP 52.

Water-Based Renewable Energy Generation Pilot Projects.

During the period the 2012 NWPs have been in effect, we received a suggestion that this NWP also authorize floating solar energy generation facilities.

In response to that suggestion, we are proposing to modify this NWP to include floating solar energy generation projects in navigable waters of the United States. A single water-based solar renewable energy unit can occupy a substantial area of navigable waters. We are proposing to limit the surface area of navigable waters covered by floating solar energy generation facilities to

1/2

-acre, but are seeking comment on whether a different limit would be more appropriate for such projects. The current 10-unit limit for water-based wind turbines and hydrokinetic generation units does not seem practical for floating solar generation facilities and for ensuring that adverse effects to navigation and other public interest review factors due to floating solar energy facilities are no more than minimal, individually and cumulatively.

Please note that floating water-based solar energy generation facilities installed in open waters subject only to Clean Water Act section 404 jurisdiction do not require DA authorization unless there is an associated discharge of dredged or fill material into waters of the United States. Water-based solar energy generation facilities are structures floating on the water surface, and structures in section 404-only waters that do not involve discharges of dredged or fill material do not require DA authorization.

On December 22, 2014, the Corps issued guidance clarifying the circumstances when hydrokinetic projects that require authorization from the Federal Energy Regulatory Commission (FERC) or DA authorization under Sections 9 and 10 of the Rivers and Harbors Act of 1899. That guidance concluded that hydrokinetic projects authorized by FERC under the Federal Power Act of 1920 do not require DA authorization under sections 9 or 10 of the Rivers and Harbors Act of 1899. Therefore, NWP 52 would only be used to authorize hydrokinetic projects in navigable waters that do not require FERC authorization. Nationwide permit 52 can be used to authorize water-based renewable energy generation facilities on the outer continental shelf, if those generation facilities require authorization under section 10 of the Rivers and Harbors Act of 1899. Section 4(f) of the Outer Continental Shelf Lands Act of 1953, as amended (43 U.S.C. 1333(e)) extended the Corps' section 10 authority over installations, artificial islands, and structures on the outer continental shelf (see 33 CFR 320.2(b) and 322.3(b)).

We are requesting comments on modifying this NWP to remove the terms that limited the 2012 NWP 52 to pilot projects. We are also seeking comment on limits of the number of permanent water-based renewable energy generation units that could authorized by this NWP, if the pilot project limitation is removed in the final NWP. As discussed above, we are also soliciting comment on acreage limits for water-based solar renewable energy generation projects.

Discussion of Proposed New Nationwide Permits

During the period the 2012 NWPs were in effect, the Corps received a number of suggestions for changes to the NWPs, general conditions, and definitions. Suggested modifications of existing NWPs, general conditions, and definitions are discussed above. In response to those suggestions, we are proposing to issue two new NWPs to authorize two categories of activities: The removal of low-head dams and the construction and maintenance of living shorelines. Some low-head dam removals might have been authorized by NWP 27, if those dams were small dams located in headwater streams. However, most low-dam removal requires individual permit authorization because it is not covered by an NWP or regional general permit. The proposed NWP will facilitate the removal of low-head dams that are no longer being used for their intended purposes or are too costly to repair. The removal of low-head dams restores ecological processes in rivers and streams and enhances public safety.

We are also proposing to issue a new NWP that authorizes the construction and maintenance of living shorelines. Many living shorelines require individual permit authorization, and some Corps districts have issued regional general permits to authorize different types of living shorelines. The proposed NWP will provide general permit authorization for the construction and maintenance of living shorelines, which will give landowners

a choice in how they can protect their property under erosion mitigation measures authorized by NWP. Bank stabilization activities are authorized by NWP 13 and if the proposed new NWP is issued, it will provide a similar streamlined authorization process as NWP 13. Both of these NWPs will result in decreased processing times and permit application costs associated with obtaining authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

Proposed NWP A. Removal of Low-Head Dams

We are proposing to issue a new NWP to authorize structures and work in navigable waters of the United States, as well as associated discharges of dredged or fill material into waters of the United States, for the removal of low-head dams. One objective for removing such dams would be to restore rivers and streams by removing barriers that adversely affect ecological processes. Another objective would be to facilitate removal of these dams to enhance public safety because many low-head dams are old and poorly maintained, and are potential safety hazards. The proposed NWP will authorize activities that restore rivers and streams, and improve public safety. As discussed below, low-head and other types of dams cause substantial disruption and degradation of the ecological functions performed by rivers and streams. Low-head dams also pose hazards to swimmers and paddlers. The proposed NWP would only authorize the removal of low-head dams. If the landowner or other entity wants to construct a replacement or new dam, he or she would have to obtain a separate Department of the Army authorization to construct a replacement or new dam into waters of the United States.

A large number of low-head or run-of-the river dams were constructed in the United States during the past few centuries to increase water levels to provide water for towns and cities, and industries, as well as power (Tschantz and Wright 2011). Many of those dams were built in the 19th century, and are deteriorating or have been abandoned (Tschantz and Wright 2011). Many of these dams, especially the older dams, no longer serve an economic purpose (Born et al. 1998, Shuman 1995) and are in need of repair or replacement to comply with modern dam safety standards. Low-head dams present a safety hazard, and have been linked to hundreds of deaths since the 1960s (Tschantz 2014).

Graf (1993) estimates there are more than 2,000,000 small dams in the United States, and many of these small dams are low-head dams. Many of these dams need to be replaced or repaired, and the replacement or repair costs are likely to be prohibitive for 90 percent of the dam owners (Shuman 1995). Dam removal may be the only practical economic alternative for protecting public safety and preventing economic losses if they cannot be repaired or replaced. There is also increasing interest in removing these dams to restore rivers and streams, and the ecological functions and services they provide (Born et al. 1998). There is also interest in removing these dams to protect public safety.

Dams cause a number of adverse effects on rivers and streams, such altering river and stream hydrology, altering sediment transport through the riverine network, changing flooding regimes, fragmenting river and stream habitats, and blocking corridors for movement of fish and other aquatic organisms (Stanley and Doyle 2003, Poff and Hart 2002). Dams also modify nutrient cycling processes in rivers and streams, change water temperatures, and alter the functioning of aquatic and riparian habitats (Poff and Hart 2002). Dams change the communities of aquatic organisms from riverine species that inhabit free-flowing waters to lacustrine species that prefer to live in lakes (Born et al. 1998). Dam removal helps reverse many of these adverse effects, and restore ecological functions performed by rivers and streams and their riparian habitats (O'Connor et al. 2015, Stanley and Doyle 2003, Gregory et al. 2002, Bednarek 2001)

Dams can be classified in a number of ways. One approach to classifying dams is an operational or functional definition: Run-of-the river dams versus storage dams (Poff and Hart 2002). Run-of-the river dams have small hydraulic heads and storage volumes, short residence times, and there is little or no control of the rates at which water is released from the dams (Poff and Hart 2002) because the water is allowed to flow over the dam structure (Csiki and Rhoads 2014). Storage dams have large hydraulic heads and storage volumes, long hydraulic residence times, and there is control over water releases from the dams (Poff and Hart 2002).

Another approach is to classify dams as large or small, based on designated thresholds of dam height and storage capacity. For example, the National Inventory of Dams considers large dams as having high hazard potential or dams with low hazard potential that are either (1) more than 7.6 meters (25 feet) tall with a storage capacity more than 18,500 cubic meters (653,000 cubic feet), or (2) more than 1.8 meters (6 feet) tall with a storage capacity greater than 61,700 cubic meters (2,367,000 cubic feet) (Poff and Hart 2002). Dams classified these three ways listed above can vary considerably in size (Poff and Hart 2002). Dams may be considered “small” if they do not meet or exceed the criteria for large dams under the National Inventory of Dams (

e.g.,

Fencl et al. 2015, Stanley et al. 2002). Dam height is not a good indicator of the storage capacity of a dam because the storage capacity also depends on the shapes of the stream channel and the valley in which the stream is located, and the lateral extent of the dam structure.

The National Inventory of Dams is a congressionally authorized automated information system that catalogues dams in the United States and its territories. The current National Inventory of Dams was published in 2013, and it includes information on 87,000 dams that are more than 25 feet high, can store more than 50 acre-feet of water, or are considered a significant hazard if they were to fail. The National Inventory of Dams is maintained and published by the Corps along with the Association of State Dam Safety Officials, the states and territories, and Federal agencies that regulate dams. Additional information on the National Inventory of Dams is available at:

http://www.agc.army.mil/Media/FactSheets/FactSheetArticleView/tabid/11913/Article/480923/national-inventory-of-dams.aspx

(accessed April 6, 2016).

Run-of-the river dams usually are not higher than the channel banks of the rivers and streams in which they are located (Csiki and Rhoads 2014). Low-head dams are considered run-of-the-river dams (Tschantz and Wright 2011). Tschantz and Wright (2011) define low-head dams as dams that pass water over the entire dam structure, and were constructed to raise the water level and provide a source of water for industry, municipal water supply, irrigation, recreation, and to protect utility lines. Low-head dams pass peak flows and are unlikely to hold fine sediment or alter downstream water flows (Poff and Hart 2002, Csiki and Rhoads 2014). They have little effect on downstream hydrologic regimes (Doyle et al. 2005).

For the purposes of this NWP, we are proposing to define a “low-head dam” as “a dam built across a stream to pass flows from upstream over the entire width of the dam crest on an uncontrolled basis.” For this NWP, we are proposing to adapt the definition of “low-head” dam from Tschantz and Wright (2011) because dams that meet

that definition store low volumes of sediment, and therefore sediment releases during low-head dam removal will be more likely to be small and result in no more than minimal adverse environmental effects. Sediment releases from dam removal are less of a problem for low-head dams and dams in wide valleys, because there is not much sediment stored behind those dams (Gregory et al. 2002). During high flows, sediment from the impounded area upstream of the low-head dam is transported over the dam structure, thus preventing the impoundment from filling with sediment (Fencl et al. 2015, Csiki and Rhoads 2014). Because low-head dams do not store large amounts of sediment and low-head dams continue to allow sediment transport through the impoundment, they are not likely to be storing contaminants at levels greater than the levels of contaminants transported along the stream network through normal runoff and sediment transport processes (Poff and Hart 2002). Contaminants usually adhere to fine sediments (

i.e.,

silts, clays) that are more readily transported through the stream network in the suspended sediment load. Low-head dams continue to allow that sediment transport to continue because the water that passes over the crest of the low-head dam carries those fine sediments in suspension. Csiki and Rhoads (2014) found that sediments stored in run-of-the-river dams turn over rapidly because they are regularly flushed out of the impoundment during high flow events. Therefore, low-head dams are likely to be storing little sediment laden with contaminants.

We are soliciting comment on alternative approaches to defining “low-head dams” for the purposes of this NWP. Alternative approaches may define low-head dams in terms of maximum dam heights or reservoir volumes. Commenters suggesting other definitions of low-head dams for use with this NWP should explain how their recommended definitions will be more effective than the proposed definition in helping ensure that NWP A only authorizes those low-head dam removals that result in no more than minimal individual and cumulative adverse environmental effects. Those recommendations should cite scientific studies or reviews in support of those suggested definitions.

Recent reviews and studies have shown that rivers and streams recover quickly after dam removal (

e.g.,

O'Connor et al. 2015, Lovett 2014, Doyle et al. 2005, Stanley et al. 2002). The rate of recovery is dependent on dam size, river size, river channel shape, sediment volume, and sediment grain size (O'Connor et al. 2015). Sediment released as a result of dam removal are redistributed throughout the downstream segments within months (O'Connor et al. 2015). Different groups of aquatic organisms recover at different rates following dam removal (Doyle et al. 2005, Stanley and Doyle 2003). Dam removal should be viewed in the trade-offs that occur (Stanley and Doyle 2003). There are substantial long-term beneficial ecological outcomes from dam removal (

e.g.,

restored river flows, habitat connectivity, temperature regimes, sediment transport, and migration corridors) and some short-term adverse effects (

e.g.,

sediment releases, increased turbidity, and the potential release of contaminated sediments) (Bednarek 2001).

The proposed NWP will also facilitate the removal of old, deteriorating low-head dams that present threats to public safety. Low-head dams are hazardous to kayakers, canoeists, and others that engage in water-borne recreational activities and try to cross the crests of these dams. These dams can create a reverse roller wave at the base of the downstream side of the dam, and cause fatalities through drowning.

The release of sediments from dams, either through their operation or the removal of dam structures, may or may not result in a discharge of dredged or fill material, as those terms are defined at 33 CFR 323.2. Csiki and Rhoads (2014) concluded that there should be less concern about sediment management when removing run-of-the-river dams because of the minor sediment volumes stored by such dams. The determination of whether a regulated discharge occurs from such sediment releases is made on a case-by-case basis. Regulatory Guidance Letter 05-04, issued by the Corps on August 19, 2005, provides guidance on when sediment releases from dam breaches require DA authorization under section 404 of the Clean Water Act. District engineers will use the information provided in that Regulatory Guidance Letter when evaluating PCNs. When evaluating PCNs, district engineers will also consider whether there is a need to test sediment that might be stored in the impoundment for contaminants, based on a “reason to believe” approach similar to the EPA's inland testing manual for dredged material. If the district engineer determines that the release of sediments associated with the removal of a low-head dam results in a discharge of dredged or fill material, this NWP would authorize that discharge. The effects of those sediment releases will diminish over time, as the sediment is transported downstream by the flowing water.

Nationwide permit 27 authorizes the installation, removal, and maintenance of small water control structures, dikes, and berms to restore or enhance streams and other types of aquatic resources. Small water control structures include small dams, and small in-stream dams are typically limited to headwater streams. While DA authorization to remove some low-head dams could be provided by NWP 27, the proposed new NWP would authorize the removal of larger low-head dams, including low-head dams located below the headwaters, that are not authorized by NWP 27. The proposed NWP would authorize the removal of low-head dams regardless of stream size or the location in the stream network in a watershed, as long as the district engineer determines, after reviewing a PCN, that the proposed low-head dam removal activity will result in no more than minimal individual and cumulative adverse environmental effects.

We are seeking comments on this proposed new NWP, including its terms and conditions, such as the definition of “low-head dam.” In response to a PCN, the district engineer may impose activity-specific conditions on an NWP verification to ensure that the adverse environmental effects of the authorized activity are no more than minimal or exercise discretionary authority to require exercise discretionary authority to require an individual permit for the proposed activity.

Proposed NWP B. Living Shorelines

We are proposing to issue a new NWP to authorize structures and work in navigable waters of the United States, and discharges of dredged or fill material into waters of the United States, for the construction and maintenance of living shorelines. While some activities associated with living shorelines can be authorized by NWPs 13 and 27, the construction of living shorelines often requires individual permits because the structures, work, and fills may not fall within the terms and conditions of those NWPs. These activities often require substantial amount of fill discharged into jurisdictional waters and wetlands to achieve appropriate grades to dissipate wave energy, as well as sills or breakwaters to protect the marsh fringe that helps maintain the grade of the substrate. Living shorelines may also alter intertidal and subtidal habitats utilized by endangered or threatened species, and PCNs for this NWP will be evaluated by district engineers to determine if ESA Section 7 consultation

is required to comply with general condition 18.

Living shorelines maintain the continuity of natural land-water interface and provide ecological benefits which hard bank stabilization structures do not, such as improved water quality, resilience to storms, and habitat for fish and wildlife.

We are proposing a separate NWP to authorize the construction and maintenance of living shorelines to provide an efficient mechanism for authorizing these types of projects when they have no more than minimal adverse environmental effects. The current and proposed NWP 13 is an important tool for authorizing a variety of bank stabilization techniques to help protect private and public property and infrastructure. Both NWP 13 and proposed NWP B provide options for implementing the Corps' regulations relating to considerations of property ownership, especially 33 CFR 320.4(g). Section 320.4(g)(2) states that a landowner has the “general right to protect property from erosion” and that “applications to erect protective structures will usually receive favorable consideration.”

Living shorelines are designed for erosion control and also sustain habitat functions along a shoreline, resulting in minimal environmental effects on a coastline. Living shorelines provide ecosystem services to society, shoreline stabilization, storm attenuation, food production, nutrient and sediment removal, water quality improvement and carbon sequestration (Barbier et al. 2011). The vegetation and fish utilization in constructed marsh sill can mirror that of nearby natural marshes in just a few growing seasons (Currin et al. 2008; Gittman et al. 2016). Even narrow marshes, like a frequent component of living shoreline designs, have been shown to slow waves and reduce shoreline erosion. It must be noted, shorelines are dynamic environments and the core function of stabilization is not static, but changes over time.

In 2007, the National Research Council (NRC) issued a report entitled: “Mitigating Shore Erosion Along Sheltered Coasts.”

3

One of the findings in that report was that the lack of a general permit to authorize living shorelines is one of a few factors that discourages the use of that erosion control technique in sheltered coasts. Other studies have made similar findings. The 2007 NRC study and other reports acknowledge that living shorelines are not practical or feasible in all coastal environments. Living shorelines work best in sheltered coasts, which are defined in the 2007 NRC report as shorelines that front smaller bodies of water, and are not subject to the high energy erosive forces that occur along open coasts. Additional information on living shorelines is available from the Systems Approach to Geomorphic Engineering Group (SAGE), in a publication entitled “Natural and Structural Measures for Shoreline Stabilization.”

4

In 2015, the National Oceanic and Atmospheric Administration issued guidance on living shorelines.

5

3

Available at

http://www.nap.edu/read/11764/.

4

Available at:

http://sagecoast.org/

(accessed February 4, 2016).

5

Available at:

http://www.habitat.noaa.gov/pdf/noaa_guidance_for_considering_the_use_of_living_shorelines_2015.pdf

(accessed February 5, 2016).

Coastal environments fall along a continuum, and there is no quantifiable measure to identify a sheltered coast. Therefore, judgment must be used to determine whether a particular segment of the shoreline is a sheltered coast where the use of living shorelines to manage erosion will likely be practical and effective. According to the 2007 NRC report, sheltered coasts are typically found in estuaries, bays, lagoons, and coastal deltas.

Depending on site conditions, these areas exhibit a variety of geomorphic features, such as upland bluffs, dunes, beaches, tidal flats, and sand bars. In sheltered coasts, the distance to the opposite shore (

i.e.,

fetch) is generally small, and water depths are usually shallow. These coastal areas are usually subject to low velocity tidal currents and low- or medium-energy waves. In general, the larger the fetch the higher the level of protection needed to reduce erosion and to protect the property.

Living shorelines are generally limited to lower energy, sheltered estuarine waters rather than open estuarine waters and marine waters with higher energy waves and currents. Living shorelines are also used in the Great Lakes, and this proposed NWP would also authorize the construction and maintenance of living shorelines in these waters and other lakes. In lower energy shorelines, sills or breakwaters can provide protection to fringe marshes landward of those structures, but in higher energy coastal environments, wave energy can bypass those structures and erode the substrate, resulting in the loss of the marsh fringe. The combination of a constructed or enhanced marsh fringe with protective sills or breakwaters can help maintain a more natural shoreline and provide more ecological functions and services than hardening shorelines to reduce erosion. Another living shoreline approach is to construct short, low-profile, sand containment structures perpendicular to the shoreline, place sand between the low-profile sand containment structures, grade the sand to the proper slope to dissipate wave energy, and plant marsh vegetation in the sand to establish or improve a fringe marsh to reduce erosion. This design approach allows organisms more access to and from the intertidal zone than living shorelines constructed with stone sills.

Sills are structures placed in the water outside the seaward edge of a tidal marsh fringe. Sills can be constructed with stone or other materials (

e.g.

oyster, oyster shell bags, coir fiber logs, coir with mussels, etc.) and protect the existing or planted marsh fringe by reducing wave action and erosion. The sill should be the minimum size necessary to protect the marsh fringe. Sills should have breaks to allow aquatic animals to move between the open water and the marsh fringe. Breakwaters are structures consisting of stone or other materials that are constructed offshore to reduce the energy of waves reaching the shoreline, and protect the marsh vegetation planted or recruited along the shore. Breakwaters may be detached from, or attached to, the shoreline.

“Living shoreline” is a broad term that encompasses a range of shoreline stabilization techniques along estuarine coasts, bays, sheltered coastlines, and tributaries. A living shoreline has a footprint that is made up mostly of native material. It incorporates vegetation or other living, natural “soft” elements alone or in combination with some type of harder shoreline structure (

e.g.

oyster reefs or rock sills) for added stability. Living shorelines are designed for erosion control and also sustain habitat function along a shoreline, resulting in minimal environmental effects on a coastline. Living shorelines provide ecosystem services to society, shoreline stabilization, storm attenuation, food production, nutrient and sediment removal, water quality improvement and carbon sequestration. The vegetation and fish utilization in constructed marsh sill can mirror that of nearby natural marshes in just a few growing seasons. Even narrow marshes—like a frequent component of living shoreline designs—have been shown to slow waves and reduce shoreline erosion. It should be noted that shorelines are dynamic environments and the core function of stabilization is not static, but changes over time.

We are seeking comment on the proposal to limit the placement of structures and fills to within 30 feet of the mean high water line or ordinary high water mark. Please note that the proposed 30 foot limit is not a design standard. It is merely intended to establish a limit above which a written waiver from the district engineer is required to obtain NWP authorization. The proposed 30-foot limit was derived by examining some of the literature on the design living shorelines, especially those living shorelines that involve the planting of a marsh fringe with and without sills or other types of protective structures. Sand fills are often needed to establish a grade along the shore that will dissipate wave energy and provide appropriate elevations for the planting of marsh grasses that will further reduce wave energy. A typical grade for sand fills for planted tidal marsh fringe ranges from 8:1 to 10:1 (Hardaway et al. 2010). According to the Maryland Department of the Environment (MDE), marsh establishment projects for shore protection are typically 20 to 25 feet wide and additional encroachment into the water would be needed if sills or other structures are necessary to protect the marsh (MDE 2008). In mid-energy wave environments, wetland marshes need to be around 40 to 70 feet wide with armor stone to protect the marsh (Hardaway et al. 2010).

Based on our review of available information on design specifications for living shorelines, we determined that 30 feet is a moderate encroachment that could authorize a large proportion of living shorelines with no more than minimal adverse environmental effects. We are seeking comments on the proposed 30-foot limit, and welcome suggestions for different limits as long as the commenter provides supporting data or other information for his or her proposed limit. We are also proposing to allow district engineers to waive this 30 foot limit, if they make a written determination concluding that the proposed activity will result in only minimal adverse environmental effects after coordinating the PCNs with the agencies. The project proponent must submit a PCN before a waiver can be issued by the district engineer, and if the district engineer does not provide a written verification authorizing the waiver, then the proposed activity does not qualify for NWP authorization.

The design and construction of living shorelines are dependent on site-specific conditions. This NWP is intended to provide flexibility to authorize living shorelines in a variety of environmental settings, as long as discharges of dredged or fill material in

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