Proposal To Issue, Reissue, and Modify Nationwide Permits; Public Hearing

SUMMARY: The Corps of Engineers is proposing to reissue the existing

nationwide permits (NWPs) and conditions, with some modifications, and

issue four new NWPs. We are also proposing options for the threshold

limits for NWP 26.

The public is invited to provide comments on these proposals and is

being given the opportunity to request public hearings on the NWPs. The

Corps of Engineers will hold a public hearing at the National Guard

Association Building, at One Massachusetts Ave, NW, Washington, DC on

July 17, 1996, at 10:00 AM and end at 4:00 PM or before, if all

speakers present have had an opportunity to speak. This hearing is

opened to the public. Comments may be submitted in person at the

hearing or in writing to the Office of the Chief of Engineers at the

address given below. The hearing record will remain open until August

1, 1996. The legal authority for this hearing is section 404 of the

Clean Water Act (33 U.S.C. 1344) and section 10 of the Rivers and

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

DATES: Comments must be received by August 16, 1996.

ADDRESSES: National comments should be submitted in writing to: Office

of the Chief of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW,

Washington, DC 20314-1000. Regional comments should be sent to the

appropriate Corps District offices at the addresses listed below.

Comments will be available for examination at the Office of the Chief

of Engineers, Room 6225, Pulaski Building, 20 Massachusetts Avenue NW,

Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. Tim Zimmerman or Mr. Sam

Collinson, Regulatory Branch, Office of the Chief of Engineers at (202)

761-0199.

SUPPLEMENTARY INFORMATION:

Background

The White House Office on Environmental Policy announced the

President's Wetlands Plan on August 24, 1993. The plan sets forth a

comprehensive package of improvements to the Federal wetlands

protection programs. A major goal of the plan is that the programs be

fair, flexible, and effective. To achieve this goal, the Corps

regulatory program must continue to provide effective protection for

wetlands and other aquatic resources, while conveying to the public a

clear understanding of regulatory requirements. In its implementation,

the regulatory program must be administratively efficient, flexible yet

predictable, and avoid unnecessary impacts to private property, the

regulated public, and the environment.

There are 37 existing nationwide permits. Thirty-six of the NWPs

were published in the November 22, 1991, Federal Register at 33 CFR

Part 330, Appendix A. They became effective on January 21, 1992, and

expire on January 21, 1997. One additional NWP, the Single-Family

Housing NWP (NWP 29), was published in the Federal Register on July 27,

1995, and became effective on September 25, 1995. NWP 29 will expire on

September 25, 2000.

In the preamble of the Final Rule at 33 CFR Part 330 as published

in the Federal Register (56 FR 59110) on November 22, 1991, we

indicated that upon expiration of the existing NWPs, we would issue the

NWPs separately from the regulations governing their use and rescind 33

CFR Part 330, Appendix A. The NWPs will now be published using the

procedures adopted in November 22, 1991, for issuance, reissuance,

modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will

no longer appear in the Code of Federal Regulations but will be

published in the Federal Register and announced, with regional

conditions, in the public notices issued by Corps district offices.

We are proposing to reissue all the existing NWPs. We are also

proposing to modify several existing NWPs and several NWP conditions as

published in the Federal Register (56 FR 59110-47) on November 22, 1991

to clarify activities that are authorized by NWPs and those that are

not. Several of the proposed clarifications are a result of the

modification of the definition of discharge of dredged material at 33

CFR Part 323.2(d) as published in the Federal Register (58 FR 45008-38)

on August 25, 1993 (i.e., the excavation rule). The definition was

revised to clarify that certain excavation activities are regulated and

included the following language: ``(iii) Any addition, including any

redeposit, of dredged material, including excavated material, into

waters of the United States which is incidental to any activity,

including mechanized landclearing, ditching, channelization, or other

excavation.'' (See 33 CFR 323.(d) for the complete definition of

discharge of dredged material).

We are also proposing, in accordance with the President's Wetlands

Plan, four new NWPs to authorize those additional regulated activities

with minimal effects that resulted from the excavation rule. These new

NWPs include: A. Moist Soil Management for Wildlife; B. Food Security

Act Minimal Effect Exemptions; C. Minor Mining Activities; and D.

Maintenance of Existing Flood Control Projects.

The Corps believes, that when these changes are considered as a

whole, the average approval time for projects requiring a Department of

the Army permit will not change. However, the individual approval time

for some projects will be longer while others will be shorter. In

addition, we believe that the approval time for a vast majority of

nationwide permits will not be affected by these changes.

Regional Conditioning of Nationwide Permits

Concurrent with this Federal Register notice, District Engineers

are issuing local public notices. In addition to the changes to NWP

conditions being proposed by the Chief of Engineers, the Division and

District Engineers may propose regional conditions or propose

revocation of NWP authorization for all or some or portions of the

NWPs. Regional conditions may also be required by state Section 401

water quality certification or for state coastal zone consistency.

Comments on regional issues and regional conditions should be sent to

the appropriate District Engineer as indicated below.

ALABAMA

Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288,

Mobile, AL 36628-0001

ALASKA

Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898,

Anchorage, AK 99506-0898

ARIZONA

Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711,

Los Angeles, CA 90053-2325

ARKANSAS

Little Rock District Engineer, ATTN: CESWL-CO-R, P.O. Box 867,

Little Rock, AR 72203-0867

CALIFORNIA

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,

Sacramento, CA 95814-4794

COLORADO

Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson

Plaza NE, Rm 313, Albuquerque, NM 87109-3435

CONNECTICUT

[[Page 30781]]

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

DELAWARE

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker

Building, 100 Penn Square, East Philadelphia, PA 19107-3390

FLORIDA

Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,

Jacksonville, FL 32232-0019

GEORGIA

Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,

Savannah, GA 31402-0889

HAWAII

Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230,

Fort Shafter, Honolulu, HI 96858-5440

IDAHO

Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602,

City-County Airport, Walla Walla, WA 99362-9265

ILLINOIS

Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2004,

Rock Island, IL 61201-2004

INDIANA

Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,

Louisville, KY 40201-0059

IOWA

Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2204,

Rock Island, IL 61201-2004

KANSAS

Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal

Building, 601 E. 12th Street, Kansas City, MO 64106-2896

KENTUCKY

Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,

Louisville, KY 40201-0059

LOUISIANA

New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267,

New Orleans, LA 70160-0267

MAINE

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

MARYLAND

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

MASSACHUSETTS

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

MICHIGAN

Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027,

Detroit, MI 48231-1027

MINNESOTA

St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,

East, St. Paul, MN 55101-1638

MISSISSIPPI

Vicksburg District Engineer, ATTN: CELMV-CO-O, P.O. Box 80,

Vicksburg, MS 39180-0080

MISSOURI

Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal

Building, 601 E. 12th Street, Kansas City, MO 64106-2896

MONTANA

Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE

68101-0005

NEBRASKA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th

Street, Omaha, NE 68101-4978

NEVADA

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,

Sacramento, CA 95814-2922

NEW HAMPSHIRE

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

NEW JERSEY

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker

Building, 100 Penn Square East, Philadelphia, PA 19106-2991

NEW MEXICO

Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson

Plaza NE, Rm 313, Albuquerque, NM 87109-3435

NEW YORK

New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits

Federal Building, New York, NY 10278-0090

NORTH CAROLINA

Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890,

Wilmington, NC 28402-1890

NORTH DAKOTA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th

Street, Omaha, NE 68102-4978

OHIO

Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,

Huntington, WV 25701-2070

OKLAHOMA

Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa,

OK 74121-0061

OREGON

Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946,

Portland, OR 97208-2946

PENNSYLVANIA

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

RHODE ISLAND

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

SOUTH CAROLINA

Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,

Charleston, SC 29402-0919

SOUTH DAKOTA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th

Street, Omaha, NE 68102-4978

TENNESSEE

Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070,

Nashville, TN 37202-1070

TEXAS

Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300,

Ft. Worth, TX 76102-0300

UTAH

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,

CA 95814-4794

VERMONT

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

Road, Waltham, MA 02254-9149

VIRGINIA

Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street,

Norfolk, VA 23510-1096

WASHINGTON

Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755,

Seattle, WA 98124-2255

WEST VIRGINIA

Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,

Huntington, WV 25701-2070

WISCONSIN

St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,

East, St. Paul, MN 55101-1638

WYOMING

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th

Street, NE 68102-4978

DISTRICT OF COLUMBIA

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

PACIFIC TERRITORIES

Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230,

Fort Shafter, Honolulu, HI 96858-5440

PUERTO RICO & VIRGIN IS

Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,

Jacksonville, FL 32232-0019

State (or Tribal) Certification of Nationwide Permits

State or tribal water quality certification pursuant to Section 401

of the Clean Water Act, or waiver thereof, is required for activities

authorized by NWPs which may result in a discharge into waters of the

United States. In addition, any state with a Federally approved Coastal

Zone Management (CZM) Plan must agree with the Corps determination that

activities authorized by NWPs which are within, or will affect any land

or water uses or natural resources of the state's coastal zone are

consistent with the state CZM Plan.

The Corps believes that, in general, the activities authorized by

the NWPs will not violate state or tribal water quality standards and

will be consistent with state CZM Plans. The NWPs are conditioned to

ensure that adverse environmental effects will be minimal and are the

types of activities that would be routinely authorized, if evaluated

under the individual permit process. The Corps recognizes that in some

states or tribes there will be a need to add regional conditions or

individual state or tribal review for some activities to ensure

compliance with state water quality standards or consistency with state

CZM Plans. The Corps goal is to

[[Page 30782]]

develop such conditions so that the states or tribes can issue 401

water quality certifications or CZM consistency agreements. Therefore,

each Corps District will initiate discussions with their respective

states, tribes, and EPA following publication of this proposal to

discuss issues of concern and identify regional modifications and other

approaches to the scope of waters, activities, discharges, and

notification, as appropriate, to resolve these issues. Note that there

will be some states where a state programmatic general permit (SPGP)

has been adopted and the NWPs have been wholly or partially revoked.

Simultaneous with today's proposal, Corps Districts may be proposing

modification or revocation of the NWP in states where SPGPs will be

used in place of some or all of the NWP program.

Section 401 of the Clean Water Act: This Federal Register notice of

these NWPs serves as the Corps application to the states, tribes, or

EPA, where appropriate, for 401 water quality certification of the

activities authorized by these NWPs. The states, tribes, and EPA, where

appropriate, are requested to issue, deny, or waive certification

pursuant to 33 CFR 330.4 (c) for these NWPs.

Section 401 water quality certification requirements fall into the

following general categories:

NWPs numbered 1, 2, 8, 9, 10, 11, 24, 28 and 35 do not require 401

water quality certification since they would authorize activities

which, in the opinion of the Corps, could not reasonably be expected to

result in a discharge and in the case of NWP 8 is seaward of the

territorial seas.

NWPs numbered 3, 4, 5, 6, 7, 13, 14, 19, 20, 21, 22, 23, 27, 32,

33, 36, 37, 38, and D involve various activities, some of which may

result in a discharge and require 401 water quality certification, and

others of which do not. State denial of 401 water quality certification

for any specific NWP in this category affects only those activities

which may result in a discharge. For those activities not involving

discharges, the NWP remains in effect.

NWPs identified as 12, 15, 16, 17, 18, 25, 26, 29, 34, 40, A, B,

and C, involve activities which would result in discharges and

therefore 401 water quality certification is required.

If the state denies a 401 water quality certification for certain

activities within that state, then the Corps will deny authorization

for those activities without prejudice. Anyone wanting to perform such

activities must first obtain a project specific 401 water quality

certification or waiver thereof from the state before proceeding under

the NWP. This requirement is provided at 33 CFR 330.4(c).

Section 307 of the Coastal Zone Management Act (CZMA): This Federal

Register notice serves as the Corps determination that the activities

authorized by these NWPs are consistent with states' CZM programs,

where applicable. This determination is contingent upon the addition of

state CZM conditions and/or regional conditions or the issuance by the

state of an individual consistency concurrence, where necessary. The

states are requested to agree or disagree with this consistency

determination pursuant to 33 CFR 330.4(d) for these NWPs.

The Corps CZMA consistency determination only applies to NWP

authorizations for activities that are within, or affect any land or

water uses or natural resources of a state's coastal zone. NWP

authorizations for activities that are not within or would not affect a

state's coastal zone are not contingent on such state's agreement or

disagreement with the Corps consistency determinations.

If a state disagrees with the Corps CZMA consistency determination

for certain activities, then the Corps will deny authorization for

those activities without prejudice. Anyone wanting to perform such

activities must present a consistency certification to the appropriate

state agency for concurrence. Upon concurrence with such consistency

certifications by the state, the activity would be authorized by the

NWP. This requirement is provided at 33 CFR 330.4(d).

Discussion of Proposed Modifications to Existing Nationwide Permits

The proposed changes to the existing NWPs fall into three

categories:

Category I (Cat I)--Clarification of existing NWPs to address

questions and issues that have arisen since the NWPs were issued in

1991. It does not change the number and types of activities now

authorized by the NWP.

Category II (Cat II)--Changes to existing NWPs due to the

modification of the definition of discharge of dredged material in the

Excavation Rule, as published in the Federal Register on August 25,

1993 (58 FR 45008-38). These NWPs involve activities that previously

only required Section 10 authorization but are now regulated under

Section 404 as well. These proposed changes will not change the number

and type of activities now authorized by the NWP.

Category III (Cat III)--Modifications to existing NWPs that change

the number of activities authorized under these NWPs.

The following is a discussion of our reasons for modifying existing

NWPs. If an existing NWP is not listed, we are not proposing to change

it but to reissue the current NWP.

4. Fish and Wildlife Harvesting, Enhancement, and Attraction

Devices and Activities. (Cat I) We are clarifying that NWP 4 does not

authorize the use of covered oyster trays or clam racks.

6. Survey Activities. (Cat III) The Corps is proposing to allow

discharges of dredged or fill material and placement of structures

necessary to complete a survey for historic resources, but not for

discharges or structures necessary for the actual recovery of the

artifacts/information. The Corps is also proposing to authorize

activities necessary to conduct soil surveys and sampling. This NWP

does not authorize the placement of any permanent structures.

8. Oil and Gas Structures. (Cat I) We are clarifying that any Corps

review of this NWP, that may be required by discretionary authority, is

limited to the effects on navigation and national security as stated in

33 CFR 322.5(f).

12. Utility Line Discharges. (Cat I and II) We are proposing to

modify the wording of this NWP to include the discharge of material

resulting from the trench excavation. We are also soliciting comments

on whether limitations should be established for discharges into

special aquatic sites. Also included is clarification concerning

parallel structures to waterbodies and mechanized landclearing of

right-of-ways for utility lines located below the surface of waters of

the United States to the minimum necessary.

16. Return Water From Upland Contained Disposal Areas. (Cat II) The

Corps proposes to modify the wording of this NWP to note dredging may

now require a Section 404 permit.

18. Minor Discharges. (Cat I) We are proposing to modify the

wording of this NWP to include the volume of any excavated area as a

measurement of the quantity of discharge.

19. Minor Dredging. (Cat II) We are proposing to modify this NWP to

authorize under section 404 of the Clean Water Act, the incidental

discharges associated with the dredging activity. However, this NWP

does not apply in Section 404 only waters. Furthermore, it does not

apply in wetlands, coral reefs, sites that support submerged aquatic

vegetation, or anadromous fish spawning area. NWPs 18 and 19 may be

combined in Section 10 only waters (i.e., navigable waters of the

United States). For example, because

[[Page 30783]]

Notification is not required for NWP 18 under 10 cubic yards, a total

of 35 cubic yards may be excavated from a navigable water of the U.S.

(i.e., Section 10 water) using a combination of NWPs 18 and 19, without

notification. Excavation greater than 35 cubic yards but less than 50

cubic yards require notification.

21. Surface Coal Mining Activities. (Cat III) We are considering

expanding this NWP for mining activities on previously mined lands that

have not been subject to restoration. Currently, there is a

disincentive for mining companies to use an area that has been impacted

by previous mining activities, where wetlands have naturally

established. In such cases, mining companies are generally required as

a condition of the permit to mitigate off-site prior to or early in the

mining operation. These previously mined areas are generally degraded

and of poor quality. While in some cases, the wetlands may be of good

quality, the overall area remains degraded. We are proposing to add a

provision that when previously mined lands are used and wetlands have

naturally established, any mitigation requirements would be limited to

onsite mitigation to occur at the completion of the work. A performance

bond would be required to ensure the restoration occurs. The purpose of

this provision would be to encourage the mining of previously mined

areas that are degraded rather than the mining of new areas. Under this

proposal, previously degraded mined areas would be restored upon

completion of the subsequent mining operation. We have not proposed

specific language and are seeking comments recommending the terms and

conditions for this proposed addition to this NWP.

25. Structural Discharges. (Cat I and II) We are clarifying that

this NWP may be utilized for general navigation purposes, such as the

construction of mooring cells and some excavation activities necessary

for construction of the structure.

26. Headwaters and Isolated Waters Discharges. (Cat III) To provide

additional time for review and to better ensure project effects are

minimal, we are proposing to increase the 30- day pre-construction

notification (PCN) process to a 45-day PCN. The maximum time frame will

allow for review and evaluation of effects of a project when necessary

to ensure that the project effects are minimal. We expect that the

increased time will only be used in a minority of the NWP 26 PCNs and

then generally only when necessary to analyze the acceptability of

developing adequate mitigation. We believe that the average processing

time for NWP PCNs will continue to be under 30 days. In addition, the

Corps is considering changing the acreage threshold limits of NWP 26.

Currently, activities that affect less than one acre may proceed

without notifying the Corps, activities affecting 1 to 10 acres require

a PCN, and activities affecting over 10 acres may not be authorized by

this NWP. The Corps is proposing 3 options for the acreage limits that

would define when a PCN must be submitted. We are requesting comments

on these options which are as follows:

Option 1: 1 to 10 acres (current thresholds)

Option 2: \1/2\ to 5 acres

Option 3: \1/3\ to 3 acres

Based on a survey of Corps field offices using FY94 data, the

estimated numbers of additional activities that would require a PCN are

3700 for Option 2 and 5200 for Option 3 annually. However, while not

required to, many of these projects are now requesting a verification

from the Corps without the guarantee of a decision time frame. The PCN

would provide that guarantee. In addition, in several Corps districts,

the states have denied Section 401 water quality certifications for the

larger projects. Furthermore, in some states, the Corps has issued

state programmatic general permits based on state programs that have

lower limits. The Corps does not believe that this proposal would

result in many more individual permits. The Corps anticipates that most

of these PCN activities, as with the verification requests that are

currently being submitted for projects impacting less than 1 acre of

waters of the United States, will be authorized by NWP 26. The

increased review will increase environmental protection and increase

consistency for projects below 1 acre of effects to waters of the

United States.

To offset the additional workload and to expedite the review that

either Option 2 and 3 may generate for some Districts, the PCN for

projects affecting between the minimum threshold (\1/2\ or \1/3\) and 1

acre would not require coordination with the resource agencies.

Finally, the Corps believes that this proposal together with all the

changes proposed today will not increase the Corps average processing

time for general permits but will provide for increased environmental

protection.

Regionalization of NWP 26: As noted in the President's Plan, the

Corps will initiate a process to regionalize this NWP following a

decision regarding which threshold option is adopted. The

regionalization of NWP 26 will further improve its effectiveness. The

Corps, in coordination with appropriate Federal, State, Tribal agencies

and the public, will conduct a field level review for the purpose of

identifying, on a regional basis, the types of waters and activities

that would be authorized by this NWP. This approach was developed after

careful consideration of several alternatives. Regionalization of NWP

26 has several advantages including the ability to appropriately

condition this general permit to reflect the more local environmental

conditions within each state or region, and facilitate State/Tribal (or

EPA) certification of the permit.

The Corps recognizes that fewer than half the states have issued

section 401 certification for the existing NWP 26. As part of the

discussions that would be initiated by the Corps districts with their

respective states, tribes, and EPA to address issues related to Section

401 certification, the Corps would work with the parties to determine

what modifications can be made on a regional basis to NWP 26, in terms

of acreage limits, types of waters, notification, and authorized

activities.

27. Wetland and Riparian Restoration and Creation Activities. (Cat

II and III) The Corps proposes to modify this NWP to allow projects to

occur on any Federal lands. Projects occurring on private land will

still be permitted provided there is a binding contract between the

landowner and the Federal Government which describes the long term

management goals of the project. Projects occurring on Federal land by

Federal agencies would be allowed after review and approval of the

Operation and Maintenance Plan for the project. Also, we are

considering expanding this NWP to allow for the creation of wetlands

and their subsequent reversion on reclaimed surface coal mined lands

provided the wetlands were voluntarily created under an Office of

Surface Mining (OSM) permit or an applicable state program permit. OSM

has estimated that thousands of acres of wetlands could be created each

year most of which would be left undisturbed permanently. This would

not apply to wetlands created as mitigation for the mining permit, nor

to wetlands or waters that would be created due to hydrologic or

topographic features of the landscape, and nor to wetlands created for

a mitigation bank. We have not proposed specific language and are

seeking comments recommending the terms and condition for this NWP.

We are also seeking comments on whether (1) to eliminate the 5 year

window of reversion opportunity and

[[Page 30784]]

allow the reversion to occur at any time in the future; (2) to allow

use of this NWP to any voluntary restoration/creation project; (3) to

include enhancement as an option; and (4) to require a written

agreement in all cases, even where voluntary restoration is occurring

under other Federal or State programs without a written agreement. If

we should require a written agreement in such cases, who should approve

it and when? If there is no written agreement requirement, how should

the baseline be documented and should there be a time limit for any

reversion to take place?

29. Single-Family Housing NWP. This NWP was published for public

comment in the March 23, 1995, Federal Register (60 FR 15439) and

became effective on September 25, 1995 (60 FR 38650). We are now

proposing to reissue this NWP. This will put all the NWPs on the same

five-year review cycle. We are proposing to modify the notification

process so that it will be the same as other NWPs and to provide for

resource agency coordination during the notification review process. We

are not, at this time, proposing any other modifications to this NWP.

Should we not reissue NWP 29 at this time, it will remain in effect

until it expires on September 25, 2000 unless modified, suspended, or

revoked sooner.

We are, however, interested in your comments concerning the impacts

of this NWP. We continue to believe that this NWP provides relief to

small landowners with minimal effects on the aquatic environment. Since

its issuance, we have tracked the use of this NWP. For the first two

quarters (October 1995-March 1996), NWP 29 was used a total of 123

times nationwide resulting in only 27.1 acres of wetland impacts. This

use and acreage amount was well below what we initially estimated. We

will continue to track the use of this NWP to insure the effects are

minimal.

32. Completed Enforcement Work. (Cat III) The Corps is proposing

several changes to this NWP. First, we are proposing to expand the

scope beyond judicial enforcement actions to include agreements

resulting from Corps negotiated settlements that are not a part of

judicial actions, provided that such final agreements satisfy the

specific criteria set out in paragraphs (i) (A)-(C) of the proposed

permit. By setting out standards limiting the extent of the

unauthorized activity and ensuring that the overall effect of the final

agreement is, at a minimum, no net loss of wetlands, subpart (i) of the

proposed NWP satisfies the ``minimal effects'' threshold for issuance

of NWPs. This subpart also clarifies that obtaining an agreement does

not grant automatic coverage under this NWP. A written verification

from the District Engineer is required.

This expansion of NWP 32 would eliminate a duplication of our

evaluation efforts. Currently, we begin the enforcement action, in

accordance with 33 CFR 326, with a thorough evaluation process, usually

involving full agency coordination. This process often leads to an

agreement which may include restoration and mitigation. In such cases,

we then reevaluate the action through a second evaluation process

usually leading to issuance of an after-the-fact (ATF) permit. This NWP

would eliminate the need for the second evaluation process for those

actions that would qualify for the NWP. This, in turn, would reduce the

need for those ATF permits that consume permit application processing

resources without providing an appreciable environmental benefit. The

ATF permit process still remains a valuable tool in the enforcement

program as a way to resolve those violations that could not be resolved

through a settlement agreement and do not warrant judicial action.

The other changes to this NWP apply to both judicial decisions and

agreements and nonjudicial administrative enforcement settlements. They

clarify that compliance with the underlying judicial or administrative

decision or agreement is a condition of the NWP itself and that the

only future activities authorized under this permit are those

undertaken to complete the restoration and/or mitigation in compliance

with such decision or agreement.

The Corps is also considering providing that EPA administrative

settlement agreements could be authorized under this NWP. We are

seeking comments concerning whether this would be appropriate and if

so, what conditions, if any, would be appropriate.

33. Temporary Construction, Access and Dewatering. (Cat I and II)

We are proposing to add the provision from recent guidance stating that

this NWP could be used for construction activities not subject to

either the Corps or U.S. Coast Guard regulations. We also propose to

allow the use of on-site dredged material for temporary fills, at the

discretion of the District Engineer. Also, the last sentence of this

NWP as it currently exists will be deleted. As a result of the

Excavation Rule, we now regulate both mining activities and

construction of marina basins in Section 404 areas; therefore, this

provision is no longer applicable.

38. Cleanup of Hazardous and Toxic Waste. (Cat I) The Corps

proposes to clarify which projects approved under CERCLA do not require

authorization under sections 10 and 404.

40. Farm Buildings. (Cat I) The reference to the ``Minimization''

Condition is being corrected to reflect its current title,

``Mitigation'' Condition. We are also proposing to delete

``agricultural related structures necessary for farming activities'' to

clarify that we intend that this NWP is for authorization of farm

buildings such as agricultural sheds, supply storage, animal housing,

and production facilities located on a farm or ranch.

The following is a discussion of the new NWPs we are proposing to

issue. We have identified these NWPs by letters for the purposes of

proposing these NWPs. If issued, they would be placed at a reserved NWP

number or given a new number.

A. Moist Soil Management for Wildlife. The Corps is proposing to

authorize discharges of dredged or fill material into non-tidal

wetlands necessary to manage, construct, and/or maintain habitat and

feeding areas for wildlife. This NWP applies to Federally-owned or

managed and State-owned or managed property. Currently, certain

management practices (discing, plowing, mechanized land clearing, etc.)

require site specific authorization even though the discharge of

dredged material is for the enhancement/maintenance of the aquatic

area. Some wildlife management practices were not consistently

regulated until 1993. In an effort to reduce the effect of the changes

on the regulation of minor activities with only minimal adverse

environmental effects due to the excavation rule, this proposal will

allow the management of existing wildlife areas to proceed without

unnecessary review by various agencies. This proposal will also further

the goal of the President's Wetlands Plan to reduce duplication among

regulatory agencies. This will, of course, still allow for the use of

discretionary authority when very sensitive/unique areas may be

adversely effected by these activities.

B. Food Security Act Minimal Effect Exemptions. As noted in the

President's Wetland Plan, the Corps is proposing a NWP for discharges

of dredged or fill material into waters of the United States associated

with certain minimal effect determinations, that are exemptions from

the Food Security Act, as determined by the Natural Resources

Conservation Service (NRCS) in accordance with a written agreement

between the NRCS and the landowner. This NWP also authorizes any

[[Page 30785]]

mitigation for these exemptions that is required by the written

agreement.

The goal of the President's Wetland Plan is to produce one-stop-

shopping and reduce the differences between programs to the extent

practicable. In this regard, the Corps believes that some NRCS

exemptions would qualify for authorization under a NWP while others

would not. We are not proposing specific language for the NWP. We are

requesting public comments suggesting limitations or restrictions for

this NWP in order to insure effects are minimal. The final language

would be based on Section 322 of the 1996 Farm Bill, NRCS regulations,

and comments submitted regarding limitations and/or thresholds that

should be established to ensure that these activities meet the

requirements for issuance of NWPs. To assist you in providing us

comments on this NWP, we have included the following excerpt from

Section 322 of the 1996 Farm Bill (H.R. 2854) which discusses the

minimal effect determination:

* * *The minimal effect exemption will apply when the Secretary

(of the U.S. Department of Agriculture) has determined that 1 or

more of the following conditions exist:

(1) The action, individually and in connection with all other

similar actions authorized by the Secretary in the area, will have a

minimal effect on the functional hydrological and biological value

of the wetlands in the area, including the value to waterfowl and

wildlife.

(2) The wetland and the wetland values, acreage, and functions

are mitigated by the person through the restoration of a converted

wetland, the enhancement of an existing wetland, or the creation of

a new wetland, and the restoration, enhancement, or creation is--

(A) In accordance with a wetland conservation plan;

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

(C) Not at the expense of the Federal Government;

(D) In the case of enhancement or restoration of wetlands, on

not greater than a 1-for-1 acreage basis unless more acreage is

needed to provide equivalent functions and values that will be lost

as a result of the wetland conversion to be mitigated;

(E) In the case of creation of wetlands, on greater than a 1-

for-1 acreage basis if more acreage is needed to provide equivalent

functions and values that will be lost as a result of the wetland

conversion that is mitigated;

(F) on lands in the same general area of the local watershed as

the converted wetland; and

(G) with respect to the restored, enhanced, or created wetland,

made subject to an easement that--

(i) Is recorded on public land records;

(ii) Remains in force for as long as the converted wetland for

which the restoration, enhancement, or creation to be mitigated

remains in agricultural use or is not returned to its original

wetland classification with equivalent functions and values; and

(iii) Prohibits making alterations to the restored, enhanced, or

created wetland that lower the wetland's functions and values.

(3) The wetland was converted after December 23, 1985, but

before November 28, 1990, and the wetland values, acreage, and

functions are mitigated by the producer through the requirements of

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

(4) The action was authorized by a permit issued under section

404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) and

the wetland values, acreage, and functions of the converted wetland

were adequately mitigated for the purposes of this subtitle.

C. Mining Operations. The Corps is proposing to authorize certain

work and/or discharges of dredged material incidental to active mining

of sand and gravel and recreational mining.

Paragraph a. of the proposed NWP will allow certain operations

existing before August 1993, where the effects have already occurred,

some for many years, to continue in some cases on a limited basis, with

minimal regulation. Until the final excavation rule was issued on

August 25, 1993, some active mining operations had not been regulated

under either Section 402 (EPA jurisdiction) or Section 404 (Corps

jurisdiction). Authorization under this NWP would be for a defined

area, would not include expansion, and would require ``Notification''

to the Corps. In addition, we are expressly seeking comments on

appropriate restrictions for this NWP including seasonal use (e.g.,

fish spawning), application of best management practices, and

restrictions or prohibitions on in-stream use. For example, should the

NWP be limited to activities effecting less than a certain number of

acres of waters of the United States or involving less than a certain

number of cubic yards of excavated material annually?

Paragraph b. of the proposed NWP would authorize recreational

mining with minimal effects either individually or cumulatively. The

potential environmental effects of mining operations of this nature

vary considerably throughout the country. Therefore, we are not

proposing any nationwide specific limitations. We believe limitations

are more appropriately established by the Corps Districts and Division

at the local level based on public comment. The Division Engineer is

responsible for establishing appropriate limits on recreational mining

operations within their areas of regulatory responsibility after public

notice and opportunity for public hearing. The Division Engineer will

add regional conditions, as necessary, to ensure that the effects will

be minimal. This portion of the NWP will not be effective until the

Division Engineer establishes regional limitations. On a case-by-case

basis, the District Engineer will, if necessary, add appropriate and

practicable special conditions to ensure that effects are minimal or

will exert discretionary authority to require an individual permit for

any activity whose effects exceed the minimal threshold. If you believe

that NWP conditions should be established, we welcome comments on

appropriate restrictions for this NWP including seasonal use (e.g.,

fish spawning), application of best management practices, and

limitations on in-stream use. Again, for example, should the NWP be

limited to activities effecting less than a certain number of acres of

waters of the United States or a certain number of linear feet of

stream channel?

While the Corps is primarily concerned with establishing NWP

thresholds to determine which activities could be authorized under this

NWP, the Corps is also considering establishing thresholds for

recreational mining, below which a Corps permit would not be required.

For recreational mining that does not destroy or degrade waters of the

United States, a Section 404 permit is not required pursuant to 33 CFR

323.2(d)(3) of the Excavation Rule. Recreational activities that have a

de minimis (inconsequential) effect do not require a permit. Several

Corps District Offices have solicited comments from the public to

establish a de minimis threshold. Other Corps districts will also be

issuing public notices to seek public comment to establish threshold

limits for minor activities that will not destroy or degrade aquatic

resources. Such inconsequential activities would not require a Corps

permit.

This NWP is not to be used for peat mining nor may it be used to

access sand and gravel through a peat deposit that is a water of the

United States. The discharge of onshore or onboard processed material

into waters of the U.S. is considered a Section 402 discharge and may

also require a permit under Section 402 of the Clean Water Act. For the

purpose of this NWP, activities can be considered ``recreational'' when

they are primarily for personal enjoyment and are not reasonably

associated with or an extension of a commercial enterprise. For

example, a commercial enterprise where mining interests are leased,

sold, transfered, etc., to individuals to

[[Page 30786]]

conduct ``recreational'' mining does not qualify for the NWP.

D. Maintenance of Existing Flood Control Projects. The Corps

proposes to authorize the excavation and removal of accumulated

sediment and associated vegetation for maintenance of existing flood

control facilities including debris basins, retention/detention basins

and channels not to exceed previously authorized depths and

configurations provided the dredged material is disposed of at an

upland site or a currently authorized disposal site in waters of the

United States, and proper siltation controls are used. Prior to the

excavation rule, this activity was not consistently regulated by the

Corps. Further, the Corps believes that, when considering a baseline

environmental condition or the approved flood control channel, such

excavation activities will not result in more than minimal effects. The

Corps is interested in receiving comments regarding whether time limits

should be placed on accepting the baseline condition of older projects

that have had little or no maintenance over the years.

Notification to the District Engineer is being proposed for

excavation undertaken in flood control facilities such as unlined

basins or channels that were previously authorized, or authorized by 33

CFR 330.3. We are interested in receiving comments regarding the

maximum cubic yardage to be allowed before notification is required.

This NWP is not intended to authorize the removal of sediment and

associated vegetation from natural water courses for such purposes as

redirecting or conveying normal water flows. Only channels within

stretches of natural rivers that have previously been authorized as

part of a flood control facility would be covered under this NWP. The

Corps will consider the use of discretionary authority when sensitive/

unique areas or significant social or ecological functions and values

may be adversely effected or where the maintenance may exceed present

flood control needs, such as in cases where successive flood control

projects on a watershed have affected flood control needs.

Discussion of Nationwide Permit Conditions

General Conditions

The following is a discussion of our reasons for proposing changes

to some existing NWP conditions. If an existing NWP condition is not

listed, we are not proposing to change it.

7. Wild and Scenic Rivers. We are proposing to modify this

condition to reduce the number of individual permits that are

needlessly processed due to the prohibition of authorizing a project

under NWP procedures in designated Wild and Scenic Rivers or those in

an official study status where activities are compatible with and do

not adversely affect such rivers. The Corps is proposing that these

activities could be allowed under NWP after coordination with the

appropriate Federal agency with direct management responsibility for

the river and after a determination is made by that agency that the

proposed activity will not adversely effect the study status or the

designated Wild and Scenic River status.

13. Notification. We are proposing to modify the notification

requirements. We will no longer require applicants to contact the State

Historic Preservation Officer (SHPO) and the U.S. Fish and Wildlife

Service/National Marine Fisheries Service before submitting the pre-

construction notification PCN). We continue to encourage applicants to

contact these agencies to obtain information; however, the Corps will

now send the PCN to these agencies. Many SHPOs have indicated that they

prefer not to deal directly with the applicants. Therefore, the Corps

will coordinate with the applicants and include the SHPO as an agency

receiving the PCN. This will insure that the SHPO is afforded an

opportunity to provide comments prior to the decision to authorize a

project under the NWP. The SHPO will also be held to the same time

restraints as the other agencies.

We are also proposing a change to the notification requirements on

six NWPs. Currently, NWPs 5, 7, 13, 14, 17, 18, 21, 26, 33, 34, 37, and

38 require coordination with the resource agencies during the

notification process. We recently surveyed the field to determine the

effectiveness of requiring agency coordination for these NWPs. We found

that for NWPs 14, 21, 26, 33, 37, and 38, coordination with the

resource agencies generally generated substantive comments and assisted

us in making sound environmental decisions. Therefore, we will maintain

the agency coordination requirement for these NWPs. Conversely, for

NWPs 5, 7, 13, 17, 18, and 34, we did not find the same level of

substantive comments. Many Corps districts indicated that they received

very few, if any, comments on work proposed by these NWPs. Therefore,

we are proposing to eliminate the requirement for agency coordination

for these NWPs except in those circumstances where a Regional

Administrator of EPA, a Regional Director of USFWS, or a Regional

Director of NMFS has formally requested general notification from the

District Engineer for the activities covered by any of these NWPs. In

such cases, the Corps will provide the requesting agency with

notification on the particular NWPs. However, where the agencies have a

record of not generally submitting substantive comments on activities

covered by any of these NWPs, the Corps district may discontinue to

provide notification to those regional agency offices.

We are also proposing to increase the notification time period from

30 days to 45 days for NWP 26 to allow the District Engineer sufficient

time to determine that the proposed project has minimal adverse

environmental effects for this NWP. As part of this change, the

resource agencies will now have 7 calendar days to conduct an initial

review of the proposed action and 14 additional calendar days to submit

substantive, site-specific comments.

In addition, we are proposing notification procedures and agency

coordination for NWP 29 and the new NWPs C and D. We have determined

that coordination with the resource agencies will be useful in ensuring

that projects proposed for authorization under these NWPs have minimal

adverse environmental effects.

Notification procedures for those NWPs are outlined under General

Condition #13 (Notification) in the proposed rule.

Section 404 Only Condition

4. Mitigation. We have proposed changing the wording of this

condition to clarify the phrase ``unless the District Engineer has

approved a compensatory mitigation plan for the specific regulated

activity.'' The wording would be changed to: ``unless the District

Engineer approves a compensatory mitigation plan that the District

Engineer determines is more beneficial to the environment than on-site

minimization or avoidance measures.''

Environmental Documentation

We have made a preliminary determination that this action does not

constitute a major Federal action significantly affecting the quality

of the human environment. Preliminary environmental documentation has

been prepared for each proposed NWP. This documentation includes a

preliminary environmental assessment and, where relevant, a preliminary

Section 404(b)(1) Guidelines compliance review. Copies of these

documents are available for inspection at the office of the Chief of

[[Page 30787]]

Engineers, at each Corps district office and on Corps Home Page at

http://wetland.usace.mil. Based on these documents the Corps has

provisionally determined that the proposed NWPs comply with the

requirements for issuance under general permit authority.

Authority

We are proposing to issue new NWPs, modify existing NWPs, and

reissue NWPs without change under the authority of Section 404(e) of

the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and

Harbors Act of 1899 (33 U.S.C. 401 et seq.).

Note 1: The terms ``he'' and its derivatives used in these

regulations are generic and should be considered as applying to both

male and female.

Dated: June 7, 1996.

Stanley G. Genega,

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

Nationwide Permits and Conditions

A. Index of the Nationwide Permits and Conditions

Nationwide Permits

1. Aids to Navigation

2. Structures in Artificial Canals

3. Maintenance

4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices

and Activities

5. Scientific Measurement Devices

6. Survey Activities

7. Outfall Structures

8. Oil and Gas Structures

9. Structures in Fleeting and Anchorage Areas

10. Mooring Buoys

11. Temporary Recreational Structures

12. Utility Line Backfill and Bedding

13. Bank Stabilization

14. Road Crossing

15. U.S. Coast Guard Approved Bridges

16. Return Water From Upland Contained Disposal Areas

17. Hydropower Projects

18. Minor Discharges

19. 25 Cubic Yard Dredging

20. Oil Spill Cleanup

21. Surface Mining Activities

22. Removal of Vessels

23. Approved Categorical Exclusions

24. State Administered Section 404 Programs

25. Structural Discharge

26. Headwaters and Isolated Waters Discharges

27. Wetland Restoration Activities

28. Modifications of Existing Marinas

29. Single-Family Housing

30. Reserved

31. Reserved

32. Completed Enforcement Actions

33. Temporary Construction and Access

34. Cranberry Production Activities

35. Maintenance Dredging of Existing Basins

36. Boat Ramps

37. Emergency Watershed Protection

38. Cleanup of Hazardous and Toxic Waste

39. Reserved

40. Farm Buildings

Proposed New Nationwide Permits

A. Moist Soil Management for Wildlife

B. Food Security Act Minimal Effect Exemptions

C. Minor Mining Activities

D. Maintenance of Existing Flood Control Projects

Nationwide Permit Conditions

General Conditions

1. Navigation

2. Proper Maintenance

3. Erosion and Siltation Controls

4. Aquatic Life Movements

5. Equipment

6. Regional and Case-by-Case Conditions

7. Wild and Scenic Rivers

8. Tribal Rights

9. Water Quality Certification

10. Coastal Zone Management

11. Endangered Species

12. Historic Properties

13. Notification

Section 404 Only Conditions

1. Water Supply Intakes

2. Shellfish Production

3. Suitable Material

4. Mitigation

5. Spawning Areas

6. Obstruction of High Flows

7. Adverse Impacts From Impoundments

8. Waterfowl Breeding Areas

9. Removal of Temporary Fills

B. Nationwide Permits

1. Aids to Navigation. The placement of aids to navigation and

regulatory markers which are approved by and installed in accordance

with the requirements of the U.S. Coast Guard. (See 33 CFR Part 66,

Chapter I, Subchapter C). (Section 10)

2. Structures in Artificial Canals. Structures constructed in

artificial canals within principally residential developments where the

connection of the canal to a navigable water of the United States has

been previously authorized (see 33 CFR 322.5(g)). (Section 10)

3. Maintenance. The repair, rehabilitation, or replacement of any

previously authorized, currently serviceable, structure or fill, or of

any currently serviceable structure or fill authorized by 33 CFR 330.3,

provided that the structure or fill is not to be put to uses differing

from those uses specified or contemplated for it in the original permit

or the most recently authorized modification. Minor deviations in the

structure's configuration or filled area including those due to changes

in materials, construction techniques, or current construction codes or

safety standards which are necessary to make repair, rehabilitation, or

replacement are permitted, provided the environmental effects resulting

from such repair, rehabilitation, or replacement are minimal. Currently

serviceable means useable as is or with some maintenance, but not so

degraded as to essentially require reconstruction. This NWP authorizes

the repair, rehabilitation, or replacement of those structures

destroyed by storms, floods, fire or other discrete events, provided

the repair, rehabilitation, or replacement is commenced or under

contract to commence within two years of the date of their destruction

or damage. In cases of catastrophic events, such as hurricanes or

tornadoes, this two-year limit may be waived by the District Engineer,

provided the permittee can demonstrate funding, contract, or other

similar delays. Maintenance dredging and beach restoration are not

authorized by this NWP. (Sections 10 and 404)

4. Fish and Wildlife Harvesting, Enhancement, and Attraction

Devices and Activities. Fish and wildlife harvesting devices and

activities such as pound nets, crab traps, crab dredging, eel pots,

lobster traps, duck blinds, clam and oyster digging; and small fish

attraction devices such as open water fish concentrators (sea kites,

etc.). This NWP authorizes shellfish seeding provided this activity

does not occur in wetlands or sites that support submerged aquatic

vegetation. This NWP does not authorize artificial reefs or

impoundments and semi- impoundments of waters of the United States for

the culture or holding of motile species such as lobster, or the use of

covered oyster trays or clam racks. (Sections 10 and 404)

5. Scientific Measurement Devices. Staff gages, tide gages, water

recording devices, water quality testing and improvement devices and

similar structures. Small weirs and flumes constructed primarily to

record water quantity and velocity are also authorized provided the

discharge is limited to 25 cubic yards and further for discharges of 10

to 25 cubic yards provided the permittee notifies the District Engineer

in accordance with the ``Notification'' general condition. (Sections 10

and 404)

[[Page 30788]]

6. Survey Activities. Survey activities including core sampling,

seismic exploratory operations, plugging of seismic shot holes and

other exploratory-type bore holes, soil survey and sampling, and

historic resources surveys. Discharges and structures associated with

the recovery of historic resources are not authorized by this NWP.

Drilling and the discharge of excavated material from test wells for

oil and gas exploration is not authorized by this NWP; the plugging of

such wells is authorized. Fill placed for roads, pads and other similar

activities is not authorized by this NWP. The discharge of drilling

muds and cuttings may require a permit under Section 402 of the Clean

Water Act. (Sections 10 and 404)

7. Outfall Structures. Activities related to construction of

outfall structures and associated intake structures where the effluent

from the outfall is authorized, conditionally authorized, or

specifically exempted, or are otherwise in compliance with regulations

issued under the National Pollutant Discharge Elimination System

program (Section 402 of the Clean Water Act), provided that the

nationwide permittee notifies the District Engineer in accordance with

the ``Notification'' general condition. (Also see 33 CFR 330.1(e)).

Intake structures per se are not included--only those directly

associated with an outfall structure. (Sections 10 and 404)

8. Oil and Gas Structures. Structures for the exploration,

production, and transportation of oil, gas, and minerals on the outer

continental shelf within areas leased for such purposes by the

Department of the Interior, Minerals Management Service. Such

structures shall not be placed within the limits of any designated

shipping safety fairway or traffic separation scheme, except temporary

anchors that comply with the fairway regulations in 33 CFR 322.5(l).

(Where such limits have not been designated, or where changes are

anticipated, District Engineers will consider asserting discretionary

authority in accordance with 33 CFR 330.4(e) and will also review such

proposals to ensure they comply with the provisions of the fairway

regulations in 33 CFR 322.5(l). Any Corps review under this permit will

be limited to the effects on navigation and national security in

accordance with 33 CFR 322.5(f)). Such structures will not be placed in

established danger zones or restricted areas as designated in 33 CFR

Part 334: nor will such structures be permitted in EPA or Corps

designated dredged material disposal areas. (Section 10)

9. Structures in Fleeting and Anchorage Areas. Structures, buoys,

floats and other devices placed within anchorage or fleeting areas to

facilitate moorage of vessels where such areas have been established

for that purpose by the U.S. Coast Guard. (Section 10)

10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.

(Section 10)

11. Temporary Recreational Structures. Temporary buoys, markers,

small floating docks, and similar structures placed for recreational

use during specific events such as water skiing competitions and boat

races or seasonal use provided that such structures are removed within

30 days after use has been discontinued. At Corps of Engineers

reservoirs, the reservoir manager must approve each buoy or marker

individually. (Section 10)

12. Utility Line Discharges. Discharges of dredged or fill material

associated with excavation, backfill or bedding for utility lines,

including outfall and intake structures, provided there is no change in

preconstruction contours. A ``utility line'' is defined as any pipe or

pipeline for the transportation of any gaseous, liquid, liquefiable, or

slurry substance, for any purpose, and any cable, line, or wire for the

transmission for any purpose of electrical energy, telephone and

telegraph messages, and radio and television communication. The term

``utility line'' does not include activities which drain a water of the

United States, such as drainage tile; however, it does apply to pipes

conveying drainage from another area. This NWP does authorize

mechanized landclearing for the installation of subaqueous utilities

(i.e., below the surface of waters of the United States) provided the

cleared area is kept to the minimum necessary and preconstruction

contours are maintained. However, temporary access roads or foundations

associated with overhead transmission lines are not authorized by this

NWP. Material resulting from trench excavation may be temporarily

sidecast (up to three months) into waters of the United States provided

that the material is not placed in such a manner that it is dispersed

by currents or other forces. The DE may extend the period of temporary

side-casting not to exceed a total of 180 days, where appropriate. The

area of waters of the United States that is disturbed must be limited

to the minimum necessary to construct the utility line. Where the

utility line parallels a water of the United States, care should be

taken to minimize disturbance of the regulated waterbody. In wetlands,

the top 6'' to 12'' of the trench should generally be backfilled with

topsoil from the trench. Excess material must be removed to upland

areas immediately upon completion of construction. Any exposed slopes

and streambanks must be stabilized immediately upon completion of the

utility line. The utility line itself will require a Section 10 permit

if in navigable waters of the United States. (See 33 CFR Part 322).

(Section 404)

13. Bank Stabilization. Bank stabilization activities necessary for

erosion prevention provided:

a. No material is placed in excess of the minimum needed for

erosion protection;

b. The bank stabilization activity is less than 500 feet in length;

c. The activity will not exceed an average of one cubic yard per

running foot placed along the bank below the plane of the ordinary high

water mark or the high tide line;

d. No material is placed in any special aquatic site, including

wetlands;

e. No material is of the type or is placed in any location or in

any manner so as to impair surface water flow into or out of any

wetland area;

f. No material is placed in a manner that will be eroded by normal

or expected high flows (properly anchored trees and treetops may be

used in low energy areas); and,

g. The activity is part of a single and complete project. Bank

stabilization activities in excess of 500 feet in length or greater

than an average of one cubic yard per running foot may be authorized if

the permittee notifies the District Engineer in accordance with the

``Notification'' general condition and the District Engineer determines

the activity complies with the other terms and conditions of the NWP

and the adverse environmental effects are minimal both individually and

cumulatively. (Sections 10 and 404)

14. Road Crossing. Fills for roads crossing waters of the United

States (including wetlands and other special aquatic sites) provided:

a. The width of the fill is limited to the minimum necessary for

the actual crossing;

b. The fill placed in waters of the United States is limited to a

filled area of no more than \1/3\ acre. Furthermore, no more than a

total of 200 linear feet of the fill for the roadway can occur in

special aquatic sites, including wetlands;

c. The crossing is culverted, bridged or otherwise designed to

prevent the restriction of, and to withstand, expected high flows and

tidal flows, and to prevent the restriction of low flows and the

movement of aquatic organisms;

[[Page 30789]]

d. The crossing, including all attendant features, both temporary

and permanent, is part of a single and complete project for crossing of

a water of the United States; and,

e. For fills in special aquatic sites, including wetlands, the

permittee notifies the District Engineer in accordance with the

``Notification'' general condition. The notification must also include

a delineation of affected special aquatic sites, including wetlands.

Some road fills may be eligible for an exemption from the need for a

Section 404 permit altogether (see 33 CFR 323.4). Also, where local

circumstances indicate the need, District Engineers will define the

term ``expected high flows'' for the purpose of establishing

applicability of this NWP. (Sections 10 and 404)

15. U.S. Coast Guard Approved Bridges. Discharges of dredged or

fill material incidental to the construction of bridges across

navigable waters of the United States, including cofferdams, abutments,

foundation seals, piers, and temporary construction and access fills

provided such discharges have been authorized by the U.S. Coast Guard

as part of the bridge permit. Causeways and approach fills are not

included in this NWP and will require an individual or regional Section

404 permit. (Section 404)

16. Return Water From Upland Contained Disposal Areas. Return water

from an upland, contained dredged material disposal area. The dredging

itself may require a Section 404 permit, but will require a Section 10

permit if located in navigable waters of the United States. The return

water from a contained disposal area is administratively defined as a

discharge of dredged material by 33 CFR 323.2(d) even though the

disposal itself occurs on the upland and thus does not require a

Section 404 permit. This NWP satisfies the technical requirement for a

Section 404 permit for the return water where the quality of the return

water is controlled by the state through the Section 401 certification

procedures. (Section 404)

17. Hydropower Projects. Discharges of dredged or fill material

associated with (a) small hydropower projects at existing reservoirs

where the project, which includes the fill, are licensed by the Federal

Energy Regulatory Commission (FERC) under the Federal Power Act of

1920, as amended; and has a total generating capacity of not more than

5000 KW; and the permittee notifies the District Engineer in accordance

with the ``Notification'' general condition; or (b) hydropower projects

for which the FERC has granted an exemption from licensing pursuant to

Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and

2708) and Section 30 of the Federal Power Act, as amended; provided the

permittee notifies the District Engineer in accordance with the

``Notification'' general condition. (Section 404)

18. Minor Discharges. Minor discharges of dredged or fill material

into all waters of the United States provided:

a. The quantity of discharged material and the volume of excavated

area does not exceed 25 cubic yards below the plane of the OHWM or the

High Tide Line;

b. The discharge, including any excavated area, will not cause the

loss of more than \1/10\ acre of a special aquatic site, including

wetlands. For the purposes of this NWP, the acreage limitation includes

the filled area and excavation area plus special aquatic sites that are

adversely affected by flooding and special aquatic sites that are

drained so that they would no longer be a water of the United States as

a result of the project;

c. If the discharge, including any excavated area, exceeds 10 cubic

yards or the discharge is in a special aquatic site, including

wetlands, the permittee notifies the District Engineer in accordance

with the ``Notification'' general condition. For discharges in special

aquatic sites, including wetlands, the notification must also include a

delineation of affected special aquatic sites, including wetlands.

(Also see 33 CFR 330.1(e)); and

d. The discharge, including all attendant features, both temporary

and permanent, is part of a single and complete project and is not

placed for the purpose of a stream diversion. (Sections 10 and 404)

19. Minor Dredging. Dredging of no more than 25 cubic yards below

the plane of the ordinary high water mark or the mean high water mark

from navigable waters of the United States (i.e., Section 10 actions)

as part of a single and complete project. This NWP does not authorize

the dredging or degradation through siltation of coral reefs, sites

that support submerged aquatic vegetation, anadromous fish spawning

areas, or wetlands or, the connection of canals or other artificial

waterways to navigable waters of the United States (see Section 33 CFR

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

20. Oil Spill Cleanup. Activities required for the containment and

cleanup of oil and hazardous substances which are subject to the

National Oil and Hazardous Substances Pollution Contingency Plan, (40

CFR Part 300), provided that the work is done in accordance with the

Spill Control and Countermeasure Plan required by 40 CFR Part 112.3 and

any existing State contingency plan and provided that the Regional

Response Team (if one exists in the area) concurs with the proposed

containment and cleanup action. (Sections 10 and 404)

21. Surface Coal Mining Activities. Activities associated with

surface coal mining activities provided they are authorized by the

Department of the Interior, Office of Surface Mining, or by states with

approved programs under Title V of the Surface Mining Control and

Reclamation Act of 1977 and provided the permittee notifies the

District Engineer in accordance with the ``Notification'' general

condition. For discharges in special aquatic sites, including wetlands,

the notification must also include a delineation of affected special

aquatic sites, including wetlands. (Also see 33 CFR 330.1(e)) (Sections

10 and 404.)

Note: For the purposes of this proposed rule, a discussion of a

proposed expansion for NWP 21 is provided in the Preamble.

22. Removal of Vessels. Temporary structures or minor discharges of

dredged or fill material required for the removal of wrecked,

abandoned, or disabled vessels, or the removal of man-made obstructions

to navigation. This NWP does not authorize the removal of vessels

listed or determined eligible for listing on the National Register of

Historic Places unless the District Engineer is notified and indicates

that there is compliance with the ``Historic Properties'' general

condition. This NWP does not authorize maintenance dredging, shoal

removal, or river bank snagging. Vessel disposal in waters of the

United States may need a permit from EPA (see 40 CFR 229.3). (Sections

10 and 404)

23. Approved Categorical Exclusions. Activities undertaken,

assisted, authorized, regulated, funded, or financed, in whole or in

part, by another Federal agency or department where that agency or

department has determined, pursuant to the Council on Environmental

Quality Regulation for Implementing the Procedural Provisions of the

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

activity, work, or discharge is categorically excluded from

environmental documentation because it is included within a category of

actions which neither individually nor cumulatively have a significant

effect on the human environment, and the Office of the Chief of

Engineers (ATTN: CECW-OR) has been furnished notice of

[[Page 30790]]

the agency's or department's application for the categorical exclusion

and concurs with that determination. Prior to approval for purposes of

this NWP of any agency's categorical exclusions, the Chief of Engineers

will solicit public comment. In addressing these comments, the Chief of

Engineers may require certain conditions for authorization of an

agency's categorical exclusions under this NWP. (Sections 10 and 404)

24. State Administered Section 404 Program. Any activity permitted

by a state administering its own Section 404 permit program pursuant to

33 U.S.C. 1344(g)-(l) is permitted pursuant to Section 10 of the Rivers

and Harbors Act of 1899. Those activities which do not involve a

Section 404 state permit are not included in this NWP, but certain

structures will be exempted by Section 154 of Public Law 94-587, 90

Stat. 2917 (33 U.S.C. 59l) (see 33 CFR 322.3(a)(2)). (Section 10)

25. Structural Discharges. Discharges of material such as concrete,

sand, rock, etc. into tightly sealed forms or cells where the material

will be used as a structural member for standard pile supported

structures, such as bridges, transmission line footings, and walkways

or for general navigation, such as mooring cells, including the

excavation of bottom material from within the form prior to the

discharge of concrete, sand, rock, etc. This NWP does not authorize

filled structural members that would support buildings, homes, parking

areas, storage areas and other such structures. Housepads or other

building pads are also not included in this NWP. The structure itself

may require a Section 10 permit if located in navigable waters of the

United States. (Section 404)

26. Headwaters and Isolated Waters Discharges. Discharges of

dredged or fill material into headwaters and isolated waters provided:

a. The discharge does not cause the loss of more than 10 (5,3)*

acres of waters of the United States;

b. The permittee notifies the District Engineer if the discharge

would cause the loss of waters of the United States greater than 1 (\1/

2\, \1/3\)* acre in accordance with the ``Notification'' general

condition. For discharges in special aquatic sites, including wetlands,

the notification must also include a delineation of affected special

aquatic sites, including wetlands. (Also see 33 CFR 330.1(e)); and

c. The discharge, including all attendant features, both temporary

and permanent, is part of a single and complete project.

For the purposes of this NWP, the acreage of loss of waters of the

United States includes the filled area plus waters of the United States

that are adversely affected by flooding, excavation or drainage as a

result of the project. The 10 (5,3)*-acre and 1 (\1/2\, \1/3\)*-acre

limits of NWP 26 are absolute, and cannot be increased by any

mitigation plan offered by the applicant or required by the District

Engineer.

*Note: For the purposes of this proposed rule, a discussion of

acreage threshold options being considered for NWP 26 is provided in

the Preamble.

Subdivisions: For any real estate subdivision created or subdivided

after October 5, 1984, a notification pursuant to subsection (b) of

this NWP is required for any discharge which would cause the aggregate

total loss of waters of the United States for the entire subdivision to

exceed one (1) (\1/2\, \1/3\)* acre. Any discharge in any real estate

subdivision which would cause the aggregate total loss of waters of the

United States in the subdivision to exceed ten (10) (5,3)* acres is not

authorized by this NWP; unless the DE exempts a particular subdivision

or parcel by making a written determination that: (1) the individual

and cumulative adverse environmental effects would be minimal and the

property owner had, after October 5, 1984, but prior to January 21,

1992, committed substantial resources in reliance on NWP 26 with regard

to a subdivision, in circumstances where it would be inequitable to

frustrate his investment-backed expectations, or (2) that the

individual and cumulative adverse environmental effects would be

minimal, high quality wetlands would not be adversely affected, and

there would be an overall benefit to the aquatic environment. Once the

exemption is established for a subdivision, subsequent lot development

by individual property owners may proceed using NWP 26. For purposes of

NWP 26, the term ``real estate subdivision'' shall be interpreted to

include circumstances where a landowner or developer divides a tract of

land into smaller parcels for the purpose of selling, conveying,

transferring, leasing, or developing said parcels. This would include

the entire area of a residential, commercial or other real estate

subdivision, including all parcels and parts thereof. (Section 404)

27. Wetland and Riparian Restoration and Creation Activities.

Activities in waters of the United States associated with the

restoration of altered and degraded non-tidal wetlands and creation of

wetlands on non-Federal public lands and private lands in accordance

with the terms and conditions of a binding wetland restoration or

creation agreement between the landowner and the U.S. Fish and Wildlife

Service or the Natural Resources Conservation Service; or activities

associated with the restoration of altered and degraded non-tidal

wetlands, riparian areas and creation of wetlands and riparian areas on

Federal land. Federal agencies may perform such activities on Federal

land after review and approval of an Operations and Maintenance Plan

for the project by the District Engineer. Such activities include, but

are not limited to: Installation and maintenance of small water control

structures, dikes, and berms; backfilling of existing drainage

structures; construction of small nesting islands; plowing or discing

for seed bed preparation; and other related activities. This NWP

applies to restoration projects that serve the purpose of restoring

``natural'' wetland hydrology, vegetation, and function to altered and

degraded non-tidal wetlands and ``natural'' functions of riparian

areas. For agreement restoration and creation projects only, this NWP

also authorizes any future discharge of dredged or fill material

associated with the reversion of the area to its prior condition and

use (i.e., prior to restoration under the agreement) within five years

after expiration of the limited term wetland restoration or creation

agreement, even if the discharge occurs after this NWP expires. The

prior condition will be documented in the original agreement, and the

determination of return to prior conditions will be made by the Federal

agency executing the agreement. Once an area has reverted back to its

prior physical condition, it will be subject to whatever the Corps

regulatory requirements will be at that future date. This NWP does not

authorize the conversion of natural wetlands to another aquatic use,

such as creation of waterfowl impoundments where a forested wetland

previously existed. (Sections 10 and 404)

Note: For the purposes of this proposed rule, a discussion of an

additional proposed expansion for NWP 27 is provided in the

Preamble.

28. Modifications of Existing Marinas. Reconfiguration of existing

docking facilities within an authorized marina area. No dredging,

additional slips or dock spaces, or expansion of any kind within waters

of the United States is authorized by this NWP. (Section 10)

29. Single-Family Housing. Discharges of dredged or fill material

into non-tidal waters of the United States, including

[[Page 30791]]

non-tidal wetlands for the construction or expansion of a single-family

home and attendant features (such as a garage, driveway, storage shed,

and/or septic field) for an individual permittee provided:

a. The discharge does not cause the loss of more than \1/2\ acre of

non-tidal waters of the United States, including non-tidal wetlands;

b. The permittee notifies the District Engineer in accordance with

the ``Notification'' general condition;

c. The permittee has taken all practicable actions to minimize the

on-site and off-site effects of the discharge. For example, the

location of the home may need to be adjusted on-site to avoid flooding

of adjacent property owners;

d. The discharge is part of a single and complete project;

furthermore, that for any subdivision created on or after November 22,

1991, the discharges authorized under this NWP may not exceed an

aggregate total loss of waters of the United States of \1/2\ acre for

the entire subdivision;

e. An individual may use this NWP only for a single-family home for

a personal residence;

f. This NWP may be used only once per parcel; and,

g. This NWP may not be used in conjunction with NWP 14, NWP 18, or

NWP 26, for any parcel.

For the purposes of this NWP, the acreage of loss of waters of the

United States includes the filled area previously permitted, the

proposed filled area, and any other waters of the United States that

are adversely affected by flooding, excavation, or drainage as a result

of the project. This NWP authorizes activities only by individuals; for

this purpose, the term ``individual'' refers to a natural person and/or

a married couple, but does not include a corporation, partnership, or

similar entity. For the purposes of this NWP, a parcel of land is

defined as ``the entire contiguous quantity of land in possession of,

recorded as property of, or owned (in any form of ownership, including

land owned as a partner, corporation, joint tenant, etc.) by the same

individual (and/or his or her spouse), and comprises not only the area

of wetlands sought to be filled, but also all land contiguous to those

wetlands, owned by the individual and/or his or her spouse in any form

of ownership.'' (Sections 10 and 404)

30. Reserved.

31. Reserved.

32. Completed Enforcement Actions. Any structure, work or discharge

of dredged or fill material, remaining in place, or undertaken for

mitigation, restoration, or environmental benefit in compliance with

either:

(i) The terms of a final Corps non-judicial settlement agreement

fully resolving a violation of section 404 of the Clean Water Act (CWA)

and/or section 10 of the Rivers and Harbors Act of 1899 provided that:

(a) The unauthorized activity affected no more than 5 acres of

nontidal wetlands or 1 acre of tidal wetlands;

(b) The settlement agreement provides for environmental benefits,

to an equal or greater degree, than the environmental detriments caused

by the unauthorized activity; and

(c) The District Engineer issues a verification letter authorizing

the activity subject to the terms and conditions of this nationwide

permit and the settlement agreement, including a specified completion

date; or

(ii) The terms of a final Federal court decision, consent decree,

or settlement agreement resulting from an enforcement action brought by

the United States under section 404 of the CWA and/or section 10 of the

Rivers and Harbors Act of 1899. For both (i) or (ii) above, compliance

is a condition of the NWP itself. Any authorization under this NWP is

automatically revoked if the permittee does not comply with the terms

of this NWP or the terms of the court decision, consent decree, or

judicial/non-judicial settlement agreement or fails to complete the

work by the specified completion date. This NWP does not apply to any

activities occurring after the date of the decision, decree, or

agreement that are not for the purpose of mitigation, restoration, or

environmental benefit. (Sections 10 and 404)

33. Temporary Construction, Access and Dewatering. Temporary

structures, work and discharges, including cofferdams, necessary for

construction activities or access fills or dewatering of construction

sites; provided the associated primary activity is authorized by the

Corps of Engineers or the U.S. Coast Guard, or for other construction

activities not subject to the Corps or U.S. Coast Guard regulations.

Appropriate measures must be taken to maintain near normal downstream

flows and to minimize flooding. Fill must be of materials and placed in

a manner that will not be eroded by expected high flows. The use of

dredged material may be allowed if determined by the District Engineer

that it will not cause more than minimal adverse effects on aquatic

resources. Temporary fill must be entirely removed to upland areas, or

dredged material returned to its original location, following

completion of the construction activity and the affected areas restored

to the pre-project conditions. Cofferdams cannot be used to dewater

wetlands or other aquatic areas so as to change their use. Structures

left in place after cofferdams are removed require a Section 10 permit

if located in navigable waters of the United States. (See 33 CFR Part

322). The permittee must notify the District Engineer in accordance

with the ``Notification'' general condition. The notification must also

include a restoration plan of reasonable measures to avoid and minimize

effects to aquatic resources. The District Engineer will add special

conditions, where necessary, to ensure that adverse environmental

effects are minimal. Such conditions may include: limiting the

temporary work to the minimum necessary; requiring seasonal

restrictions; modifying the restoration plan; and requiring alternative

construction methods (e.g., construction mats in wetlands where

practicable). (Sections 10 and 404)

34. Cranberry Production Activities. Discharges of dredged or fill

material for dikes, berms, pumps, water control structures or leveling

of cranberry beds associated with expansion, enhancement, or

modification activities at existing cranberry production operations

provided:

a. The cumulative total acreage of disturbance per cranberry

production operation, including but not limited to, filling, flooding,

ditching, or clearing, does not exceed 10 acres of waters of the United

States, including wetlands;

b. The permittee notifies the District Engineer in accordance with

the ``Notification'' general condition; and,

c. The activity does not result in a net loss of wetland acreage.

This NWP does not authorize any discharge of dredged or fill

material related to other cranberry production activities such as

warehouses, processing facilities, or parking areas. For the purposes

of this NWP, the cumulative total of 10 acres will be measured over the

period that this NWP is valid. (Section 404)

35. Maintenance Dredging of Existing Basins. Excavation and removal

of accumulated sediment for maintenance of existing marina basins,

canals, and boat slips to previously authorized depths or controlling

depths for ingress/egress, whichever is less, provided the dredged

material is disposed of at an upland site and proper siltation controls

are used. (Section 10)

36. Boat Ramps. Activities required for the construction of boat

ramps provided:

a. The discharge into waters of the United States does not exceed

50 cubic

[[Page 30792]]

yards of concrete, rock, crushed stone or gravel into forms, or

placement of pre-cast concrete planks or slabs. (Unsuitable material

that causes unacceptable chemical pollution or is structurally unstable

is not authorized);

b. The boat ramp does not exceed 20 feet in width;

c. The base material is crushed stone, gravel or other suitable

material;

d. The excavation is limited to the area necessary for site

preparation and all excavated material is removed to the upland; and,

e. No material is placed in special aquatic sites, including

wetlands.

Dredging to provide access to the boat ramp may be authorized by

another NWP, regional general permit, or individual permit pursuant to

Section 10 if located in navigable waters of the United States.

(Sections 10 and 404)

37. Emergency Watershed Protection and Rehabilitation. Work done by

or funded by the Natural Resources Conservation Service qualifying as

an ``exigency'' situation (requiring immediate action) under its

Emergency Watershed Protection Program (7 CFR Part 624) and work done

or funded by the Forest Service under its Burned-Area Emergency

Rehabilitation Handbook (FSH 509.13) provided the District Engineer is

notified in accordance with the ``Notification'' general condition.

(Also see 33 CFR 330.1(e)). (Sections 10 and 404)

38. Cleanup of Hazardous and Toxic Waste. Specific activities

required to effect the containment, stabilization, or removal of

hazardous or toxic waste materials that are performed, ordered, or

sponsored by a government agency with established legal or regulatory

authority provided the permittee notifies the District Engineer in

accordance with the ``Notification'' general condition. For discharges

in special aquatic sites, including wetlands, the notification must

also include a delineation of affected special aquatic sites, including

wetlands. Court ordered remedial action plans or related settlements

are also authorized by this NWP. This NWP does not authorize the

establishment of new disposal sites or the expansion of existing sites

used for the disposal of hazardous or toxic waste. Activities

undertaken by authority of CERCLA as approved or required by EPA, are

not required to obtain permits under Section 404 of the Clean Water Act

or Section 10 of the Rivers and Harbors Act. (Sections 10 and 404)

39. Reserved.

40. Farm Buildings. Discharges of dredged or fill material into

jurisdictional wetlands (but not including prairie potholes, playa

lakes, or vernal pools) that were in agricultural crop production prior

to December 23, 1985 (i.e., farmed wetlands) for foundations and

building pads for buildings. The discharge will be limited to the

minimum necessary but will in no case exceed 1 acre (see the

``Mitigation'' Section 404 only condition). (Section 404)

The following new NWPs are proposed. For the purposes of proposing

these NWPS, we have identified them by letters. If issued, they would

be placed at a reserved NWP number or given a new number.

A. Moist Soil Management for Wildlife. Discharges of dredged or

fill material associated with moist soil management for wildlife and

maintenance activities that are performed on non-tidal Federally-owned

or managed and State-owned or managed property, for the purpose of

continuing ongoing, site-specific, wildlife management activities where

soil manipulation is used to manage habitat and feeding areas for

wildlife. Such activities include, but are not limited to: the repair,

maintenance or replacement of existing water control structures; the

repair or maintenance of dikes; and plowing or discing to impede

succession, prepare seed beds, or establish fire breaks. Sufficient

vegetated buffers must be maintained adjacent to all open water bodies,

streams, etc., to preclude water quality degradation due to erosion and

sedimentation. This NWP does not authorize the construction of new

dikes, roads, water control structures, etc. associated with the

management areas. This NWP does not authorize converting wetlands to

uplands or impoundments. (Section 404)

B. Food Security Act Minimal Effect Exemptions. (See preamble for

discussion).

C. Minor Mining Activities. Discharges of dredged material into all

waters of the United States for the purpose of mining minerals,

aggregates, precious metals and gems as follows:

a. Active sand and gravel mining operations in a defined area, not

including any expansions; (i) that were under active mining on August

25, 1993; or (ii) that were previously authorized by a Corps individual

permit or NWP verification. (Previous conditions imposed by the Corps

will remain in effect unless modified by the District Engineer.) The

permittee must notify the District Engineer in accordance with the

``Notification'' general condition. For proposed discharges that may

effect special aquatic sites (i.e., wetlands, mudflats, vegetated

shallows, coral reefs, riffle and pool complexes, sanctuaries and

refuges) the notification must also include a delineation of the

affected special aquatic sites. The notification must include evidence

of active mining of a defined area on August 25, 1993, or a copy of the

Corps permit or NWP verification. The District Engineer will determine

the limits of the defined area of active mining for the purposes of

this NWP. The District Engineer for specific cases or the Division

Engineer for geographic areas, will impose quantity, location, timing,

or other restrictions, as necessary, to ensure that the effects are

minimal.

b. Recreational mining in accordance with limitations, including

quantity, location, timing, or other restrictions established by the

Division Engineer to ensure that the effects are minimal. In some

cases, a pre-construction notification will be required by the District

Engineer to ensure that the effects are minimal. Limitations and

restrictions will be proposed by public notice with the opportunity for

public comment and to request a public hearing. For the purpose of this

NWP, activities can be considered ``recreational'' when they are

primarily for personal enjoyment and are not reasonably associated with

or an extension of a commercial enterprise.

Note: This NWP does not authorize the excavation of peat

deposits that are in waters of the United States to gain access to

the minerals, aggregates, precious metals and gems. The discharge of

material from the onshore (or onboard) processing of dredged

material may require a permit under Section 402 of the Clean Water

Act. (Sections 10 and 404)

D. Maintenance of Existing Flood Control Projects. Maintenance of

existing flood control facilities; including debris basins, retention/

detention basins, and channels that were previously authorized by the

Corps by individual permit, general permit, or by 33 CFR 330.3 or were

constructed by the Corps and transferred to a local sponsor for

operation and maintenance. The maintenance may not exceed previously

authorized depths and configurations. All dredged material is placed in

an upland site or a currently authorized disposal site in waters of the

United States, and proper siltation controls are used. The permittee

must notify the District Engineer in accordance with the

``Notification'' general condition.

This NWP is for the maintenance of existing flood control projects

only. This NWP does not authorize the removal of sediment and

associated vegetation from natural water courses. (Sections 10 and 404)

[[Page 30793]]

C. Nationwide Permit Conditions

General Conditions

The following general conditions must be followed in order for any

authorization by a NWP to be valid:

1. Navigation. No activity may cause more than a minimal adverse

effect on navigation.

2. Proper maintenance. Any structure or fill authorized shall be

properly maintained, including maintenance to ensure public safety.

3. Erosion and siltation controls. Appropriate erosion and

siltation controls must be used and maintained in effective operating

condition during construction, and all exposed soil and other fills

must be permanently stabilized at the earliest practicable date.

4. Aquatic life movements. No activity may substantially disrupt

the movement of those species of aquatic life indigenous to the

waterbody, including those species which normally migrate through the

area, unless the activity's primary purpose is to impound water.

5. Equipment. Heavy equipment working in wetlands must be placed on

mats or other measures must be taken to minimize soil disturbance.

6. Regional and case-by-case conditions. The activity must comply

with any regional conditions which may have been added by the Division

Engineer (see 33 CFR 330.4(e)) and any case specific conditions added

by the Corps.

7. Wild and Scenic Rivers. No activity may occur in a component of

the National Wild and Scenic River System; or in a river officially

designated by Congress as a ``study river'' for possible inclusion in

the system, while the river is in an official study status unless the

appropriate Federal agency, with direct management responsibility for

such river, has determined in writing that the proposed activity will

not adversely effect the Wild and Scenic River designation, or study

status. Information on Wild and Scenic Rivers may be obtained from the

appropriate Federal land management agency in the area (e.g., National

Park Service, U.S. Forest Service, Bureau of Land Management).

8. Tribal rights. No activity or its operation may impair reserved

tribal rights, including, but not limited to, reserved water rights and

treaty fishing and hunting rights.

9. Water quality certification. In certain states, an individual

Section 401 water quality certification must be obtained or waived (see

33 CFR 330.4(c)).

10. Coastal zone management. In certain states, an individual state

coastal zone management consistency concurrence must be obtained or

waived (see Section 330.4(d)).

11. Endangered Species. No activity is authorized under any NWP

which is likely to jeopardize the continued existence of a threatened

or endangered species or a species proposed for such designation, as

identified under the Federal Endangered Species Act, or which is likely

to destroy or adversely modify the critical habitat of such species.

Non-federal permittees shall notify the District Engineer if any listed

species or critical habitat might be affected or is in the vicinity of

the project and shall not begin work on the activity until notified by

the District Engineer that the requirements of the Endangered Species

Act have been satisfied and that the activity is authorized.

Information on the location of threatened and endangered species and

their critical habitat can be obtained from the U.S. Fish and Wildlife

Service and National Marine Fisheries Service (see 33 CFR 330.4(f)).

12. Historic properties. No activity which may affect Historic

properties listed, or eligible for listing, in the National Register of

Historic Places is authorized, until the DE has complied with the

provisions of 33 CFR 325, appendix C. The prospective permittee must

notify the District Engineer if the authorized activity may affect any

historic properties listed, determined to be eligible, or which the

prospective permittee has reason to believe may be eligible for listing

on the National Register of Historic Places, and shall not begin the

activity until notified by the District Engineer that the requirements

of the National Historic Preservation Act have been satisfied and that

the activity is authorized. Information on the location and existence

of historic resources can be obtained from the State Historic

Preservation Office and the National Register of Historic Places (see

33 CFR 330.4(g)).

13. Notification.

(a) Timing. Where required by the terms of the NWP, the prospective

permittee must notify the District Engineer with a Pre-Construction

Notification (PCN) as early as possible and shall not begin the

activity:

(1) Until notified by the District Engineer that the activity may

proceed under the NWP with any special conditions imposed by the

District or Division Engineer; or

(2) If notified by the District or Division Engineer that an

individual permit is required; or

(3) Unless 30 days (or 45 days for NWP 26) have passed from the

District Engineer's receipt of the notification and the prospective

permittee has not received notice from the District or Division

Engineer. Subsequently, the permittee's right to proceed under the NWP

may be modified, suspended, or revoked only in accordance with the

procedure set forth in 33 CFR 330.5(d)(2).

(b) Contents of Notification. The notification must be in writing

and include the following information:

(1) Name, address and telephone number of the prospective

permittee;

(2) Location of the proposed project;

(3) Brief description of the proposed project; the project's

purpose; direct and indirect adverse environmental effects the project

would cause; any other NWP(s), regional general permit(s) or individual

permit(s) used or intended to be used to authorize any part of the

proposed project or any related activity; and

(4) For NWPs 14, 18, 21, 26, 29, 38, and ``C'', the PCN must also

include a delineation of affected special aquatic sites, including

wetlands (see paragraph 13(f));

(5) For NWP 33-Temporary Construction, Access, and Dewatering, the

PCN must also include a restoration plan of reasonable measures to

avoid and minimize effects to aquatic resources.

(6) For NWP 29-Single-Family Housing, the PCN must also include:

(i) Any past use of this NWP by the individual permittee and/or his

or her spouse;

(ii) A statement that the single-family housing activity is for a

personal residence of the permittee;

(iii) A description of the entire parcel, including its size, and a

delineation of wetlands. For the purpose of this NWP, parcels of land

measuring 0.5 acre or less will not require a formal on-site

delineation. However, the applicant shall provide an indication of

where the wetlands are and the amount of wetlands that exists on the

property. For parcels greater than 0.5 acre in size, a formal wetland

delineation must be prepared in accordance with the current method

required by the Corps. (See paragraph 13(f))

(iv) A written description of all land (including, if available,

legal descriptions) owned by the prospective permittee and/or his or

her spouse, within a one mile radius of the parcel, in any form of

ownership (including any land owned as a partner, corporation, joint

tenant, co-tenant, or as a tenant-by-the-entirety) and any land on

which a purchase and sale agreement or other contract for sale or

purchase has been executed.

[[Page 30794]]

(7) For NWP ``C'' Mining Activities under (a), the PCN must also

include:

(i) Evidence of active mining of a defined area on August 25, 1993

or a copy of the Corps permit or NWP verification; and

(ii) The project plan, including the defined area and volume of

excavated material.

(8) For NWP ``D''--Maintenance of Existing Flood Control Projects,

the prospective permittee must either notify the District Engineer with

a Pre-Construction Notification (PCN) prior to each maintenance

activity or submit a maintenance plan, not to exceed five years. In

addition, the PCN must include:

(i) Sufficient evidence to identify the approved channel depths and

configurations and existing facilities. Minor deviations are authorized

provided the approved flood control protection or drainage is not

increased;

(ii) A delineation of any affected special aquatic sites, including

wetlands; and

(iii) Location of the dredged material disposal site.

(c) Form of Notification. The standard individual permit

application form (Form ENG 4345) may be used as the notification but

must clearly indicate that it is a PCN and must include all of the

information required in (b) (1)-(8) of General Condition 13. A letter

may also be used.

(d) District Engineer's Decision. In reviewing the pre-construction

notification for the proposed activity, the District Engineer will

determine whether the activity will result in more than minimal

individual or cumulative adverse environmental effects or may be

contrary to the public interest. The prospective permittee may, at his

option, submit a proposed mitigation plan with the pre-construction

notification to expedite the process and the District Engineer will

consider any optional mitigation the applicant has included in the

proposal in determining whether the net adverse environmental effects

of the proposed work are minimal. If the District Engineer deter-mines

that the activity complies with the terms and conditions of the NWP and

that the adverse effects are minimal, the District Engineer will notify

the permittee and include any agreed upon special conditions and/or

mitigation.

Any mitigation proposal must be approved by the District Engineer

prior to commencing work. If the prospective permittee elects to submit

a mitigation plan, the District Engineer will expeditiously review the

proposed mitigation plan, but will not commence a second 30-day

notification procedure. If the net adverse effects of the project (with

the mitigation proposal) are determined by the District Engineer to be

minimal, the District Engineer will provide a timely written response

to the applicant informing him that the project can proceed under the

terms and conditions of the nationwide permit.

If the District Engineer determines that the adverse effects of the

proposed work are more than minimal, then he will notify the applicant

either: (1) that the project does not qualify for authorization under

the NWP and instruct the applicant on the procedures to seek

authorization under an individual permit; (2) that the project is

authorized under the NWP subject to the applicant's submitting a

mitigation proposal that would reduce the adverse effects to the

minimal level; or (3) that the project is authorized under the NWP with

specific modifications or conditions.

(e) Agency Coordination. The District Engineer will consider any

comments from Federal and State agencies concerning the proposed

activity's compliance with the terms and conditions of the NWPs and the

need for mitigation to reduce the project's adverse environmental

effects to a minimal level.

(i) For NWP 14, 21, 26, 29, 33, 37, 38, C, and D. The District

Engineer will, upon receipt of a notification, provide immediately

(e.g., facsimile transmission, overnight mail or other expeditious

manner) a copy to the appropriate offices of the Fish and Wildlife

Service, State natural resource or water quality agency, EPA, State

Historic Preservation Officer (SHPO), and, if appropriate, the National

Marine Fisheries Service. With the exception of NWP 37, these agencies

will then have 5 calendar days (7 calendar days for NWP 26) from the

date the material is transmitted to telephone or fax the District

Engineer if they intend to provide substantive, site-specific comments.

If so contacted by an agency, the District Engineer will wait an

additional 10 calendar days (14 calendar days for NWP 26) before making

a decision on the notification. The District Engineer will fully

consider agency comments received within the specified time frame, but

will provide no response to the resource agency. The District Engineer

will indicate in the administrative record associated with each

notification that the resource agencies' concerns were considered.

Applicants are encouraged to provide the Corps multiple copies of

notifications to expedite agency notification.

(ii) Optional Agency Coordination. For NWPs 5, 7, 13, 17, 18, 26

(below 1 acre) and 34, where a Regional Administrator of EPA, a

Regional Director of USFWS, or a Regional Director of NMFS has formally

requested general notification from the District Engineer for the

activities covered by any of these NWPs, the Corps will provide the

requesting agency with notification on the particular NWPs. However,

where the agencies have a record of not generally submitting

substantive comments on activities covered by any of these NWPs, the

Corps district may discontinue to provide notification to those

regional agency offices. The District Engineer will coordinate with the

resources agencies to identify which activities involving a PCN that

the agencies will provide substantive comments to the Corps. The

District Engineer may also request comments from the agencies when the

District Engineer determines that such comments would assist in

reaching a decision if effects are more than minimal either

individually or cumulatively.

(f) Wetlands Delineations. Wetland delineations must be prepared in

accordance with the current method required by the Corps. For NWP 29

see paragraph (b)(6)(iii) for parcels less than 0.5 acres in size. The

permittee may ask the Corps to delineate the special aquatic site.

There may be some delay if the Corps does the delineation. Furthermore,

the 30-day period (45 days for NWP 26) will not start until the wetland

delineation has been completed and submitted to the Corps, where

appropriate.

(g) Mitigation. Factors that the District Engineer will consider

when determining the acceptability of appropriate and practicable

mitigation include, but are not limited to:

(i) To be practicable, the mitigation must be available and capable

of being done considering costs, existing technology, and logistics in

light of overall project purposes;

(ii) To the extent appropriate, permittees should consider

mitigation banking and other forms of mitigation including

contributions to wetland trust funds, which contribute to the

restoration, creation, replacement, enhancement, or preservation of

wetlands. Furthermore, examples of mitigation that may be appropriate

and practicable include but are not limited to: reducing the size of

the project; establishing buffer zones to protect aquatic resource

values; and replacing the loss of aquatic resource values by creating,

restoring, and enhancing similar functions and values. In

[[Page 30795]]

addition, mitigation must address effects and cannot be used to offset

the acreage of wetland losses that would occur in order to meet the

acreage limits of some of the NWPs (e.g. 5 acres of wetlands cannot be

created to change a 6-acre loss of wetlands to a 1 acre loss; however,

the 5 created acres can be used to reduce the effects of the 6-acre

loss).

Section 404 Only Conditions

In addition to the General Conditions, the following conditions

apply only to activities that involve the discharge of dredged or fill

material and must be followed in order for authorization by the NWPs to

be valid:

1. Water supply intakes. No discharge of dredged or fill material

may occur in the proximity of a public water supply intake except where

the discharge is for repair of the public water supply intake

structures or adjacent bank stabilization.

2. Shellfish production. No discharge of dredged or fill material

may occur in areas of concentrated shellfish production, unless the

discharge is directly related to a shellfish harvesting activity

authorized by NWP 4.

3. Suitable material. No discharge of dredged or fill material may

consist of unsuitable material (e.g., trash, debris, car bodies, etc.)

and material discharged must be free from toxic pollutants in toxic

amounts (see Section 307 of the Clean Water Act).

4. Mitigation. Discharges of dredged or fill material into waters

of the United States must be minimized or avoided to the maximum extent

practicable at the project site (i.e., on-site), unless the District

Engineer approves a compensation plan that the District Engineer

determines is more beneficial to the environment than on-site

minimization or avoidance measures.

5. Spawning areas. Discharges in spawning areas during spawning

seasons must be avoided to the maximum extent practicable.

6. Obstruction of high flows. To the maximum extent practicable,

discharges must not permanently restrict or impede the passage of

normal or expected high flows or cause the relocation of the water

(unless the primary purpose of the fill is to impound waters).

7. Adverse impacts from impoundments. If the discharge creates an

impoundment of water, adverse impacts on the aquatic system caused by

the accelerated passage of water and/or the restriction of its flow

shall be minimized to the maximum extent practicable.

8. Waterfowl breeding areas. Discharges into breeding areas for

migratory waterfowl must be avoided to the maximum extent practicable.

9. Removal of temporary fills. Any temporary fills must be removed

in their entirety and the affected areas returned to their preexisting

elevation.

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

BILLING CODE 3710-92-P