# Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-31645

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** December 13, 1996
- **Citation:** 61 FR 65874

## Text

SUMMARY: The Corps of Engineers is reissuing the existing nationwide
permits (NWP) and conditions, some with modifications, and issuing two
new NWPs. As with all general permits, NWPs include specific project
limitations which ensure that adverse effects will be no more than
minimal and that the aquatic environment will be protected. At the same
time, if a permit applicant can design a project in a way that meets
the limitations of the NWP, the Corps will provide an expedited review
and decision for the project. General permits, including NWPs, are an
essential part of the Corps regulatory program, and provide us with the
method we use to authorize 80% of the activities we regulate. An
effective NWP program is essential to administration of the Corps
regulatory program. The Corps, however, is increasingly aware of the
concerns regarding the level of adverse effects being authorized by
NWPs, particularly NWP 26. As a result, we have taken a critical look
at the NWP program to better ensure that projects that truly have
minimal impacts will continue to be authorized, while ensuring that
only minimal individual and cumulative adverse effects will result from
the Corps authorizing projects under the program. For example, we have
made substantial changes to NWP 26, with an ultimate approach of more
clearly defining the activities regulated through activity-specific
replacement general permits. The interim changes to NWP 26 we have made
will greatly increase environmental protection while increasing the
review time for a relatively small percentage of the total number of
activities authorized each year. We have also become increasingly aware
of the concerns that NWPs, particularly NWP 26, need to be modified to
reflect regional differences in aquatic ecosystem functions and values
and to more effectively reflect the desire of the states to develop
partnerships to protect the aquatic environment. We, therefore, have
directed our districts to carefully review all of the NWPs,
particularly NWP 26, to revoke applicable NWPs in high value aquatic
ecosystems, and to add regional conditions to limit the applicability
of the NWPs to ensure that no more than minimal adverse effects occur
in each district. We are also directing the districts to work with the
states to develop mutually agreeable conditions that will result in a
greater level of state Section 401 water quality certifications being
issued for the NWPs. We are directing our districts to develop local
procedures with their counterparts in the U.S. Fish and Wildlife
Service and National Marine Fisheries Service which will ensure that
the Corps bases its ``affect'' and ``jeopardy'' decisions on the best
available information. We are also initiating formal programmatic
consultation under section 7 of the Endangered Species Act regarding
the procedures associated with administering the NWP program. We
believe that the changes described above, along with many others we
have included in this reissuance of the NWPs, will substantially
increase protection of the aquatic environment, ensure that no more
than minimal adverse effects will occur, and maintain the regulatory
flexibility necessary to administer a reasonable regulatory program.

EFFECTIVE DATE: February 11, 1997.

ADDRESS: Information can be obtained by writing to: Office of the Chief
of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW., Washington,
DC 20314-1000.

FOR FURTHER INFORMATION: Contact Mr. Sam Collinson or Mr. John Studt,
at (202) 761-0199 or access the U.S. Army Corps of Engineers Regulatory
Home Page at: http//:wetland.usace.mil/

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 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 were 37 existing nationwide permits. Thirty-six of the NWPs
were published in the November 22, 1991, Federal Register (FR) at 33
CFR part 330, appendix A (56 FR 59110). They became effective on
January 21, 1992, and expire on January 21, 1997. One additional NWP,
the Single-Family Housing NWP (NWP 29), was proposed in the Federal
Register on July 27, 1995, (60 FR 38650) and became effective on
September 25, 1995. NWP 29 would 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 on November 22, 1991, for issuance, re-issuance,
modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will
no longer appear in the Code of Federal Regulations (CFR) but will be
published in the Federal Register and announced, with regional
conditions, in the public notices issued by Corps district offices, and
included on the Internet.
We are reissuing all the existing NWPs; however, several have been
modified, as have several NWP conditions as published in the Federal
Register (56 FR 59110) on November 22, 1991. Many of the proposed
clarifications are a result of the modification of the definition of
``discharge of dredged material'' at 33 CFR 323.2(d), as published in
the Federal Register (58 FR 45008) on August 25, 1993 (i.e., the
excavation rule). The definition was revised to include the following
language that clarified which excavation activities are regulated:
``(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 323.2(d)
for the complete definition of ``discharge of dredged material'').
We are also issuing, in accordance with the President's Wetlands
Plan, two new NWPs to authorize those additional regulated activities
with minimal adverse effects that resulted from the excavation rule.
These new NWPs include: NWP 30, Moist Soil Management for Wildlife; and
NWP 31, Maintenance of Existing Flood Control Projects.
The Corps believes that, when the changes to the nationwide permits
and their conditions are considered as a whole, the average approval
time for

[[Page 65875]]

projects requiring a Department of the Army permit will not
substantially change. However, the individual approval time for some
projects will be longer while for others it may be shorter. In
addition, we believe that the approval time for a vast majority of
activities authorized by nationwide permits will not be affected by
these changes.
We have made a final determination that this action does not
constitute a major Federal action significantly affecting the quality
of the human environment. Environmental documentation and a Finding of
No Significant Impact (FONSI) have been prepared for each NWP. This
documentation includes an environmental assessment and, where relevant,
a section 404(b)(1) Guidelines compliance review. Copies of these
documents are available for inspection at the office of the Chief of
Engineers, at each Corps district office, and on the Corps Home Page at
http://wetland.usace.mil/. Based on these documents the Corps has
determined that the proposed NWPs comply with the requirements for
issuance under general permit authority.
The 36 nationwide permits issued or reissued effective January 21,
1991 will expire on January 21, 1997; however, all of these permits are
being reissued with an effective date of February 11, 1997. There will
be a period between January 21, 1997 and February 11, 1997 where these
36 NWPs will not be in effect. Between today and February 11, 1997 the
permittee may submit Pre-construction Notifications (PCNs) required by
the terms of certain NWPs, in accordance with the NWP ``Notification''
General Condition. However, the 30 day (45 day for NWP 26) time period
in the notification condition will not start until February 11, 1997.
Further, Corps districts will review PCNs during this period and will
verify projects as soon as possible after February 11, 1997. Nationwide
Permit 29, Single Family Housing, is revoked and reissued with new
conditions on the same effective date, February 11, 1997, and
therefore, there will not be a period of time where NWP 29 is not in
effect. Permittees may submit PCNs at any time, however, the 30 day
time period for the reissued NWP 29 will not start until February 11,
1997. In addition, two new nationwide permits, NWP 30 and 31, are being
issued with the same effective date. All of the issued and reissued
nationwide permits, with the exception of NWP 26, will expire in 5
years on February 11, 2002 unless otherwise modified, reissued or
revoked. Nationwide Permit 26 will automatically expire 2 years from
today's date unless otherwise modified or revoked.
Many of the nationwide permits have been modified in the course of
reissuance. The continued adequacy of an authorization under a
nationwide permit, following its expiration, is dependant upon whether
that permit has been reissued with or without modification. A
nationwide permit is considered to have been modified if either the
permit scope or limitations have been modified, or if one of the
nationwide permit conditions which applies directly to the activity has
been modified. In those cases where the nationwide permit is being
reissued without change, and General Condition 4 does not directly
apply, the verification remains valid as issued. In those cases where
the previously used nationwide permit is being reissued with
modification (NWPs 6, 12, 14, 21, 26, 27, 32) or General Condition 4
directly applies to the activity, activities which commence (i.e.,
under construction, or are under contract to commence) in reliance upon
the earlier NWP, prior to January 21, 1997, will remain authorized
provided the activity is completed prior to January 21, 1998, unless
discretionary authority has been exercised on a case-by-case basis to
modify, suspend, or revoke the authorization in accordance with 33 CFR
330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the
authorization of a nationwide permit that was in effect at the time the
activity was completed continue to be authorized by that nationwide
permit. DE's will, in accordance with 33 CFR 330.6(a), provide
applicants with the above information in their responses to requests
for verification of compliance with nationwide permits. These
procedures are specified in 33 CFR 330.6(b).

Discussion of Public Comments and Changes

I. Overview

Approximately 4,000 comment documents addressing the proposed
nationwide permits were received in response to the June 17, 1996,
Federal Register announcement (61 FR 30780), district public notices,
one national public hearing, and 6 regional public hearings. The Corps
has reviewed and considered all the comments. Many of the comments
expressed support for the nationwide permit program while many others
opposed the program. Most comment letters provided permit specific
comments, providing information and recommending changes to both the
permits and permit conditions. A few commenters provided comments
specific to 33 CFR part 330, our regulations governing implementation
of the nationwide permit program. These comments were also reviewed and
have been made a part of the record. However, no changes have been
proposed for 33 CFR part 330 and, therefore, it is not being revised at
this time.

II. General Comments

Regionalization of Nationwide Permits
The Corps proposed a process to regionalize the nationwide permits,
particularly NWP 26, in order to reflect the differences in aquatic
ecosystem functions and values that exist across the country. We
envisioned a process where we would solicit the views of the various
stakeholders regarding the nationwide permits and develop region-
specific approaches for each district to best protect the environment
while providing fair, reasonable, and timely decisions for the
regulated public. The final permits we are issuing today reflect a
clear decision to proceed in a way that does regionalize the program,
particularly NWP 26. We are issuing NWP 26 for an interim period of two
years, during which we will gather interested parties at the national
level as well as the district and division levels, to develop
replacement permits for NWP 26. The replacement permits will be
activity-specific rather than the geographic based approach of NWP 26.
By developing activity-specific NWPs to replace the existing NWP 26, we
will be able to more clearly and effectively address the potential
impacts to the aquatic environment, as well as more effectively address
specific applicant group needs.
Once the Corps establishes activity-specific replacement permits
that have clear national conditions to ensure the aquatic environment
is protected and the impacts will be no more than minimal, each
district, working with the Corps divisions, will establish regional
conditions for the activity specific replacement permits. This may
result in the revocation of certain NWPs in aquatic environments of
particularly high value, and the addition of regional limitations to
specifically address needs for protection of specific environmental
assets. Of course, we will continue to encourage all districts to
develop programmatic general permits (PGP) with states and other
regional authorities that effectively regulate the waters of the United
States. When such permits are developed and issued, it is often
appropriate for the Corps district

[[Page 65876]]

to revoke the nationwide permits in the area covered by the (PGP),
provided the PGP provides at least the level of protection of the
aquatic environment that the Corps does through its administration of
the NWP program.
During the next two years, as the Corps develops the activity-
specific replacement permits, the revised NWP 26 will be in effect. We
have substantially changed NWP 26, with additional nationwide
limitations and conditions, in order to provide substantially improved
protection of the aquatic environment, and to ensure that only minimal
adverse effects will result from use of the NWP. These additional
limitations and conditions are discussed in detail in the preamble for
NWP 26 below, as are the specific means by which we have directed the
districts and divisions to regionalize NWP 26. In summary, we have
directed our districts working with the divisions and Federal and state
natural resource agencies to add region-specific conditions to all
NWPs, paying particular attention to NWP 26, which will add an
additional layer of protection to the changes we have put into place at
the national level. This process will also involve public notice and
comment to ensure that all interested parties have the opportunity to
be involved in the process.
Reissuance Process
A few commenters also commented on the process we used for
reissuance of the NWPs. One commenter felt that the Corps should have
requested comments and suggestions from the public prior to issuance of
the proposed nationwide permits. A few expressed concern that the Corps
Special Public Notices, announcing the proposed nationwide permits and
requesting comments, did not include sufficient information to generate
meaningful comment by the public. These commenters felt that the public
notices should have included such information as: The text of all
nationwide permits proposed for reissuance, legal and biological
justification for reissuance, the location of records regarding use and
impacts of the nationwide permits, potential additional impacts due to
reissuance or modification of the permits, the extent and effectiveness
of existing mitigation permit conditions, the effect of the proposed
changes in the permits, and the possible benefits to the nation of
eliminating specific NWPs. These commenters also felt that the comment
period was not adequate for so many permits at one time and recommended
the Corps publish individual public notices for each permit, three per
month, with 90 day review periods for each public notice.
The Corps believes that the process provided adequate information
and time for public review and comment. We provided concise information
regarding the proposed revisions to the nationwide permits and included
the names, addresses and phone numbers of points of contact for
requesting additional information. To include the information requested
by a few reviewers as outlined above was not considered to be
productive and the publication would be too voluminous and costly for
publication and distribution to the general public. Information
requests received during the review period were given priority and
information was provided in as timely a manner as was possible. We
extended the original 45 day review period by 14 days and added 6
regional public hearings to the originally scheduled hearing in
Washington, D.C., in order to provide as much opportunity for the
public to comment as was reasonable. In response we received
approximately 4,000 letters of comment, and most of the public hearings
were well attended. The Corps also believes it is much more efficient
and less burdensome on all parties involved to collectively review all
the nationwide permits at one time. To publish three notices a month
for 90 days each would require more than a year to address all 39 NWPs
and place a continuous review burden on the commenting public for the
entire period. Such a process would also result in significant
inefficiencies in the utilization of Corps limited resources for
implementing the program.
Accounting
A substantial number of commenters stated that the Corps of
Engineers should establish a system of record keeping to quantify
impacts and mitigation, and that such records would be necessary to
document that the nationwide permits have only minimal adverse
environmental effects. Many commenters stated that the acreage lost due
to nationwide permits is not known and the Corps cannot support a
conclusion that the effects of the nationwide permits are not
significant. A number of commenters stated that reporting should be
required for all nationwide permits while others called for reporting
for any permit which might have more than minimal impact. Comments
indicated that, at a minimum, data reported should include the location
and size of any wetlands, and should be collected by activity,
nationwide permit number and acreage for each aquatic type. A large
number of commenters asked that the records be published quarterly or
annually and one suggested they be made available on the Internet.
The Corps has collected and reviewed specific data to assist in
making program-wide determinations and decisions regarding the NWP
program. While we believe that the data currently being collected for
most nationwide permits is sufficient for these purposes, we are
increasing the information we will regularly collect in the future. In
particular, we are making changes to NWP 26 that will substantially
increase the data base regarding that permit. Many districts also
collect additional data relative to the use of nationwide permits for
use in regionally conditioning the nationwide permits and evaluating
specific actions on a case-by-case basis. We do not have the resources
necessary for field verification of all nationwide authorizations and
associated mitigation efforts. While we do not believe it is necessary
to publish periodic reports regarding the nationwide permit program,
information and data collected is available for public review upon
request. Each district does periodically publish a ``Permits Issued and
Denied'' report which is currently sent to standard mailing lists. The
Corps is planning to provide access to such information and data via
the Internet.
Enforcement
Most of those who commented on the enforcement of nationwide
permits expressed the belief that the Corps has not enforced permit
conditions or verified that projects are eligible for the nationwide
permit issued. One commenter stated that lax enforcement gives
violators an economic advantage over those who comply with the law.
Commenters stated that the Corps must develop a system to monitor
activities, verify applicant information, and enforce conditions.
Several comments suggested conducting random inspections and penalizing
violators. Other proposals included recommendations that we develop a
process to allow citizens to petition the Corps to address a situation
where conditions are not being met, or to allow citizens to sue the
Corps to enforce conditions.
The Corps has limited human resources to manage the entire
Regulatory Program. Since properly developed and coordinated nationwide
permits have minimal individual or cumulative adverse effects, we
direct the majority of our efforts to projects with a greater potential
for impact to the environment. Every application

[[Page 65877]]

received is reviewed and a determination is made whether the project is
authorized by an existing general permit or requires a standard
individual permit (IP) evaluation process. The Corps does inspect a
selected number of permitted activities, including nationwide permit
activities, each year to encourage and verify compliance with all terms
and conditions of the permit (individual or general). The Corps does
follow up on reports of alleged violations of the Clean Water Act (CWA)
and/or the Rivers and Harbors Act of 1899 (RHA) and pursues resolution
of those actions. The Corps currently accepts and investigates
suspected violations reported by citizens. Furthermore, each district
has an enforcement program and administers it in a manner to provide
the most effective compliance with the CWA, to include spot checks,
monitoring, reporting, etc.
Notwithstanding the above, we agree that we need to do more to
ensure compliance. Therefore, the Corps is, with the reissuance of the
NWPs, instituting a program that will require every verified permittee
to certify, in writing, that they constructed the project in accordance
with the permitted plans, including any mitigation. The Corps is
reviewing its enforcement and compliance program to determine if
additional guidance is necessary.
Stacking of NWPs
Many commenters indicated that the use of multiple NWPs for a
single project (a practice referred to as ``stacking'') should be
eliminated or restricted because it allows opportunity for greater than
minimal adverse effects to result under nationwide permit
authorizations.
The purpose of the NWP program is to authorize activities that
cause only minimal individual and cumulative adverse environmental
effects with a minimum of administrative processing. While being
responsive to applicants and protective of the aquatic environment are
considerations that must be balanced, the Corps understands fully that
the statutory threshold of ``minimal adverse effects'' is controlling,
whether the action involves the use of one or more NWP. We believe
that, under certain circumstances, NWPs can be used in combination and
result in only minimal individual and cumulative adverse environmental
effects. In this regard, our regulations provide for multiple use of
NWPs (but each one only once for a single and complete project)
provided that the combined adverse effects are minimal. If an activity,
otherwise eligible for a nationwide permit, is an integral part of a
project for which a standard individual permit is required, it cannot
be authorized by an NWP. Most combinations of NWPs allowing discharges
of dredged or fill material in waters of the United States (including
wetlands and other special aquatic sites), require a PCN to the
District Engineer (DE). The PCN process requires the District Engineer
to determine whether the activity or combination of activities will
result in more than minimal individual or cumulative adverse
environmental effects. With this notice we are directing all District
Engineers to conduct very critical reviews of projects involving
stacking to ensure that no more than minimal adverse effects will
occur.
While the Corps allows, under certain specific circumstances, the
multiple use of NWPs for single and complete projects, many NWPs are
generally ``stand alone'' project authorizations (e.g., NWP 21 would
authorize all activities associated with the project) without the need
for other NWPs. Some other NWPs, while they are occasionally used with
other NWPs, generally are not (e.g., NWP 28 for modification of an
existing marina is mostly used alone); however, occasionally it may be
used with NWP 3 for repair of an existing structure or with NWP 13 for
some bank stabilization. Generally, only 7 of the 37 NWPs are used more
than occasionally with certain other NWPs for authorizing projects.
These 7 NWPs are 3, 12, 13, 18, 19, 26, and 33. We believe that of
those 7 NWPs, those with the potential to have more than minimal
impacts, when used with certain other NWPs, are NWPs 18 and 26 in
combination with each other and with NWPs 14 and 29. Consequently, to
ensure that the multiple use of nationwide permits does not result in
more than minimal adverse effects, the Corps will restrict the multiple
use (i.e., stacking of those nationwide permits) as follows. NWP 14 has
been modified so that it cannot be combined with NWP 18 or NWP 26 for
the purpose of extending the limitations of any of the three permits.
For example, NWPs 14 and 26 cannot be combined to authorize a fill of
3\1/3\ acres. Furthermore, NWP 18 cannot be combined with NWP 26 to
increase the threshold or the limitations of NWP 26. NWP 29 is already
conditioned that it cannot be used in conjunction with NWP 14, NWP 18,
or NWP 26. We have also limited the impacts allowed when stacking any
NWP with NWP 26 or NWP 29. Whenever any other NWP is used in
conjunction with NWP 26, the total acreage of impacts to waters of the
United States, for all NWPs combined, cannot exceed 3 acres. Similarly,
whenever any other NWP is used in conjunction with NWP 29, the total
acreage of impacts to the waters of the United States, for all NWPs
combined, cannot exceed \1/2\ acre. We believe that these limitations
will eliminate abuse of stacking while allowing appropriate multiple
use of some nationwide permits. For example, the Corps could authorize
a 0.3 acre road crossing to a 2.5 acre NWP 26 fill project, with
appropriate avoidance and mitigation.
Finally, we have added General Condition 15 ``Multiple Use of
Nationwide Permits'' that requires a Corps-only PCN in any case where
any NWP 12 through 40 is combined with any other NWP 12 through 40 for
a single and complete project. For example, if an applicant wishes to
combine the use of NWP 14 for a road that does not involve fill in
wetlands and NWP 13 for a bulkhead less than 500 feet in length, a
Corps-only notification will be required; even though, the use of these
NWPs for the projects described do not require a PCN if constructed
independently. However, the change noted above will ensure that for
combinations that have the potential to result in more than minimal
adverse environmental effects, a Corps-only PCN will be required.
State Section 401 Water Quality Certification
Many commenters expressed opposition to the Corps practice of
issuing provisional verifications of authorization under nationwide
permits for which section 401 water quality certifications have been
denied by the state. They expressed the belief that it put undue
pressure on the states to certify the projects. Some also commented
that it was unfair to require the states to issue, deny, or waive water
quality certification within 60 days of receipt of an individual
request for certification. Some felt that if a state denied water
quality certification for a nationwide permit, the Corps should not
authorize any projects under that particular NWP and that the projects
should be evaluated under the individual permit procedures. Others
believed that administration of sections 401 and 404 should be merged
for NWP 26.
It is important to emphasize at the outset that it is the intent of
the Corps to work closely with states and Tribes (or EPA where
appropriate) during the next 60 days to facilitate State 401 Water
Quality Certification. The Corps is committing to meet with the states

[[Page 65878]]

and Tribes at the District level, with the goal of ensuring that
issuance of each of the NWPs in today's package is consistent with
Water Quality Standards established by the states, Tribes, and EPA.
This process will include discussion and incorporation of appropriate
terms and conditions that would ensure consistency with state/Tribal
Water Quality Standards.
We believe that the procedures in 33 CFR part 330 regarding state
401 water quality certification are appropriate and provide a
reasonable approach for the state to ensure their water quality
standards will be met. Moreover, we believe denial of a 401 water
quality certification for a nationwide permit should not be the sole
basis for requiring an individual permit application for activities
that would otherwise comply with the terms and conditions of that
nationwide permit. Denial of state water quality certification for a
nationwide permit does not necessarily mean that unacceptable adverse
environmental effects will occur on a case-by-case basis. Rather, it
indicates that the state is not confident that state standards will be
met in all cases. It follows then that, based on the state's denial,
the Corps denies authorization, without prejudice, for those activities
for which the state denied section 401 water quality certification.
Those activities cannot proceed under an NWP or an IP unless the state
subsequently issues or waives a water quality certification for that
activity. Thus, when the state determines that state standards are met
in a specific case (i.e., an individual 401 water quality certification
is issued or is waived), the nationwide permit authorization should be
available to the prospective permittee. Finally, this approach is based
on our desire to develop effective partnerships with states where
workload is shared, regulatory duplication is reduced, and neither the
Corps nor the states determine how the other party discharges its
regulatory responsibilities.
Given the concern regarding the potential water quality impacts of
NWP 26, the Corps will also provide an additional opportunity for
review for this NWP. In those circumstances where a state has denied
section 401 water quality certification for activities between 1/3 and
one acre, EPA may request that the Corps provide EPA with PCNs for
those proposed activities in the state. Specifically, if the Regional
Administrator requests PCNs in those states that have denied water
quality certification, the Corps will provide PCNs to EPA consistent
with the notification general condition. EPA will work with the other
Federal resource agencies to determine which PCNs they wish to receive,
and will forward them as appropriate. We anticipate that in most states
the agencies will not be receiving PCNs for discharges between 1/3 and
one acre because of the Corps commitment to work with the states to
ensure, to the best of our ability, that Section 401 water quality
certification will be granted.
Several commenters stated that the Corps ought to prevent the
states from requiring verification of authorization from the Corps
under section 404 prior to receiving 401 certification or waiver
thereof. Other commenters stated that the Corps should limit the
states' review under section 401 to only 21 days. The Corps believes it
would be inappropriate for us to instruct the states on implementation
of their responsibilities under section 401, but rather we will work
with the states to resolve concerns regarding impacts to the Nation's
waters and implementation of our respective regulatory programs on a
programmatic basis. This will include discussions between the states
and the Corps on a reasonable period of time for the states to act on
an individual Section 401 water quality certification.
One commenter recommended an additional general condition requiring
that projects otherwise eligible for nationwide permits also be
consistent with the requirements of section 303 of the Clean Water Act.
The states, as part of their review and evaluation under section 401 of
the Clean Water Act, are responsible for ensuring compliance with
several sections of the Clean Water Act, including section 303.
Therefore, we have proposed no changes for this provision.
Publication of the Nationwide Permits in the CFR
Many commenters were opposed to publishing the NWPs only in the
Federal Register (FR) and suggested that they be published in both the
Code of Federal Regulations (CFR) and FR. Many indicated that using the
CFR is easier and more accessible and that the FR would make it more
difficult and even a burden for the public to obtain a full list of
available NWPs. One commenter stated that the Corps failed to provide
an explanation of why it proposes to publish the NWPs only in the FR.
One comment indicated that most county and university law libraries
have the CFR, but not back issues of the FR; that only libraries with
Federal document depositories have FRs and very few carry back issues.
One commenter pointed out that although FRs are found on databases or
CD Rom (e.g., Environmental Law Reporters) they usually have only the
prior year on database. Therefore, they would have no access until the
nationwide permits are over one year old.
One commenter requested that the final announcement include a
summary of nationwide permits valid in each state to provide those who
work in multiple states with a ``one-stop reference'' of potential
nationwide permits.
The final nationwide permits have not been included in the CFR and
are being published herein, following procedures similar to those for
individual permits and regional general permits, because NWPs are
permits, not regulations, and therefore, are not appropriate for
publication in the Code of Federal Regulations. While publication in
the CFR would provide a ready reference, publication of the final
decisions on the nationwide permits are announced in the Federal
Register and will also be published through regional public notices
issued by District Engineers. Moreover, publication of the nationwide
permits in the CFR does not provide an accurate representation of the
nationwide permits for any particular area. Such CFR publication would
not include the state 401 position nor regional conditions imposed by
the local Corps district and division offices. Furthermore, the CFR is
only published once a year. Therefore, the reissued NWPs would not be
published until July 1997. In addition, it is our intention to ensure
that all of the pertinent statutes, regulations and other guidance, as
well as the nationwide permits including district regional conditions,
be made available on the Internet in the near future.
Compliance With the National Environmental Policy Act
Numerous commenters stated that issuance of the NWPs in their
proposed form would constitute a major Federal action which would have
a significant effect on the human environment, thus requiring
preparation of an Environmental Impact Statement (EIS) under the
National Environmental Policy Act (NEPA). Numerous commenters also
contended that the Corps decision documents are inadequate, do not
provide enough information, and are based on insufficient data to
appropriately evaluate the impacts of the NWPs. Many of the comments
received indicated the Corps should prepare an EIS to ensure that
adverse effects are minimal. One commenter added that, at a minimum, an
EIS should be prepared for NWPs 26

[[Page 65879]]

and 29. Other commenters listed the following NWPs as needing an EIS:
NWPs 12, 13, 14, 21, 34, and 40.
Several commenters requested that the Corps prepare a cumulative
impact analysis now and make it part of an EIS. Several different
commenters provided the following estimates of cumulative impacts
occurring under the existing NWP program as acres of wetlands lost:
70,000 acres per year; 82,000 acres from 1988 to 1996 nationwide from
27 of the 36 Corps districts and only from NWPs that were reported to
the Corps (included in this figure was an estimate of 4,333 acres of
vernal pools lost in California); in 1994 more than 90,000 wetland
filling activities proceeded under Corps general permits; nearly one-
half million activities; the sum of the small, 0.5-acre, wet areas,
like the prairie potholes and vernal pools, impacted is biologically
significant; the National Oceanic and Atmospheric Administration's
National Marine Fisheries Service (NMFS) Pre-construction Notification
(PCN) database from 1992 to 1996 indicated a loss of 5,500 acres in the
southeast region of the United States (Florida had more than 2,000
acres, Georgia, more than 1,000 and coastal Texas 300 acres in Harris
County alone).
Several commenters raised the issue of alternatives analysis. One
commenter recommended that a full range of reasonable alternatives be
explored in the decision documentation, to include not only alternative
formulations of the individual NWPs, but also alternative approaches to
NWPs, in general. The commenter states that Programmatic General
Permits (PGPs), including state PGPs, have already been demonstrated to
be effective in several northeastern states. One commenter requested
that the decision documents incorporate the regional conditions.
The Corps has collected data relevant to the usage of nationwide
permits and associated impacts and we believe that our data demonstrate
that the adverse effects from the previous NWPs were minimal. These
data show that for Fiscal Year 1995 (FY95) a total of 43,775 activities
were authorized with written Corps verifications under all of the NWPs
nationwide (this total does not include those for NWP 27, which allows
for creation, enhancement and restoration of wetlands and are,
therefore, anomalous to this data set). These authorizations under all
of the NWPs adversely affected approximately 6,500 acres of wetlands
and the Corps received approximately 7,800 acres of mitigation in
return. It is estimated that there were approximately 87,000 activities
authorized by all of the NWPs nationwide that did not require a PCN, or
were otherwise verified in writing by the Corps. We estimate that these
unverified authorizations adversely effected an additional 4,300 acres
of wetlands. Although this is less than many have suggested, we are
consciously striving to reduce this loss through the changes to the
program set forth here today. Moreover, the provisions and limitations
of the nationwide permit program ensure that those activities
authorized by NWPs will have less than minimal adverse environmental
effects. Notwithstanding our continued belief that adverse effects of
the NWP program have been minimal and the fact that the NWPs we are
issuing today will substantially reduce potential effects, the Corps
will collect additional data on the reissued NWPs, to document more
fully the impacts. For all NWPs that involve a PCN, we will collect
data on the acreage of impact and acreage of mitigation. We are also
adding a condition to NWP 26 that will require all permittees to notify
the Corps of the acres of impact of their project.
The Corps evaluation of the impacts on the aquatic environment
resulting from the Nationwide Permit (NWP) program indicates that the
cumulative adverse environmental effects are minimal and not
significant. This is based on our belief that cumulative impacts must
be viewed in the context of the individual watersheds. We believe that
past regional conditions placed on NWPs, particularly NWP 26, in many
districts have substantially reduced cumulative impacts on a watershed
basis. Districts have revoked NWP 26 in many high value watersheds and
placed additional notification or other limitations on NWP 26 to ensure
minimal adverse environmental effects to specific watersheds. Although
these past regional protections have substantially reduced adverse
environmental impacts, we believe additional protections are needed to
continue to ensure that only minimal adverse environmental effects will
occur. Some of the additional protections we are implementing include
substantially reducing the acreage limits under NWP 26, ensuring that
stacking of NWPs impacts a maximum of 3 acres and only after a review
by the Corps, substantially increasing the number of instances where a
Corps review is necessary, and requiring increased and more detailed
data collection to better monitor NWP activity. Moreover, we are more
strongly directing the Corps districts and divisions to add regional
conditions for high value watersheds, and additional generalized
regional conditions that will ensure that only minimal impacts will
occur. This will also ensure that cumulative impacts will not be
significant.
In that the adverse effects will be less than minimal, it also
follows that they will not result in ``significant impacts on the human
environment,'' the threshold requiring an EIS as defined within
regulations implementing NEPA. Thus, no EIS is required prior to
finalization of these nationwide permits. Formal documentation of the
Corps analysis and determinations have been prepared in compliance with
NEPA and the Clean Water Act. This documentation includes an
environmental assessment and, where relevant, a section 404(b)(1)
Guidelines compliance analysis. Copies of these documents are available
for inspection at the office of the Chief of Engineers and at each
Corps district office. Additionally, Division Engineers will supplement
the national NWP decision documentation to discuss regional conditions
and regional revocation requirements, which further ensure that the
impacts are minimal. These supplements will be available for inspection
at the appropriate district offices. We have prepared a programmatic
alternatives analysis for each NWP which discusses administrative
alternatives to issuing each NWP.
General Permit Criteria
Several commenters requested that the Corps define what constitutes
``minimal'' adverse effects and ``similar in nature'' and prove or
guarantee that the NWPs meet the legal requirement that wetland fills
have no more than minimal adverse effects before the NWPs are reissued.
One commenter stated that the Corps simply ignores the requirement of
section 404(e) for activities that are ``similar in nature'' and have
no more than minimal adverse effects on aquatic resources such as
wetlands. Another commenter recognized that generally the NWPs are
conditioned to ensure that adverse effects will be minimal, but was
nevertheless concerned that there are many serious exceptions, noting
NWPs 26, 29, 34, and 40. One commenter argued that some of the NWPs
covering activities that are similar in nature could affect wetlands
that were not similar, including NWPs 7, 12, 13, 14, 16, 17, 19, 21,
25, 26, 29, 33, 34, 37, and 40. Most commenters indicated that NWP 26
was of most concern and others commented that, without mitigation,
there could be a cumulative effect. Several commenters recommended that

[[Page 65880]]

the Corps first obtain data to determine the extent of the project
impacts. Without such data, they maintain that it is difficult to
accurately assess if wetland fills authorized by the NWPs comply with
the Clean Water Act requirements for no more than minimal individual or
cumulative adverse environmental effects.
We have determined that it is not appropriate to define the term
``minimal'' at the national level, because what constitutes minimal
adverse environmental effects can vary significantly from resource to
resource, state to state, county to county, and watershed to watershed,
as well as district to district. Moreover, the term ``minimal'' must be
defined based on the effects of the specific project in the immediate
vicinity, and in the watershed where the activity will occur. Simply
listing the acres lost nationally is not instructive regarding minimal
adverse effects. Therefore, the determination of ``minimal'' adverse
environmental effects is left to the discretion of the DE. The district
represents the most knowledgeable office concerning the aquatic
resources within that particular region, and the DE is therefore the
most capable of assessing relative impacts that would result from
activities authorized under the NWP program. We believe that each
nationwide permit authorizes similar activities within the definition
for general permits as defined in 33 CFR 322.2(f) and 323.2(h), and
with each district's capability to identify impacts associated with
these activities and the ability of the DE to require project specific
mitigation or to exercise discretionary authority, activities
authorized under these NWPs will have less than minimal adverse
effects. The Corps divisions have had the authority, based on
recommendations from the Corps districts, to reduce potential adverse
effects by imposing regional conditions or revoking the applicability
of specific NWPs in high value aquatic areas. The Corps divisions have
used this authority in many cases. However, we are, in this notice,
further emphasizing to all Corps districts and divisions that they
should use this authority within their geographical areas to further
ensure that only minimal individual and cumulative adverse effects will
occur. We expect that each division will, based on the recommendations
from each district, restrict the use of several nationwide permits to
ensure protection of high value aquatic systems under its authority.
Moreover, districts will ensure that adverse effects under NWP 26 are
minimal by requiring mitigation for most projects above \1/3\ acre.
This determination is further reinforced by the NEPA and Section 404
evaluations discussed above. The collection of detailed data for the
purpose of addressing cumulative impacts is also addressed above under
``Compliance with the National Environmental Policy Act.''
Endangered Species
The Corps believes that the procedures that we have in place ensure
proper coordination under section 7 of the Endangered Species Act (ESA)
as well as ensuring that threatened and endangered species will not be
jeopardized and their critical habitat will not be destroyed. We also
believe that current local procedures in Corps districts are effective
in ensuring that the ESA is fully complied with under the nationwide
permit program. Finally, we have incorporated several additional
assurances into the program which have resulted from informal
consultation with the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS).
Under the current Corps regulations for our NWP program (33 CFR
330.4(f)), each district must consider all information made available
to it, and information that it has in its own records, to determine
whether any listed threatened or endangered species or critical habitat
may be affected by a specific permit action. Based upon this
consideration and evaluation, the district will initiate consultation
with the FWS or NMFS, as appropriate, if the district determines that
the regulated activity may affect, or if the district believes that the
action is not likely to adversely affect, any endangered species.
Consultation may occur under the NWP process or the district may assert
its discretionary authority to require an individual permit for the
action and initiate ESA consultation during the individual permit
process. If the ESA consultation is conducted under the NWP process
without the district asserting its discretionary authority and require
an IP, then the applicant will be notified that he cannot proceed until
the consultation is complete. If the district determines that the
activity would have no effect on any endangered species, then the
district would proceed to issue a NWP verification letter. The Corps
verification letter will explicitly state that the Corps has made a
determination of no affect on endangered species.
Corps districts have, in most cases, established informal or formal
procedures with their local counterparts in the FWS and NMFS through
which the agencies share information regarding endangered species.
Information developed, shared, and used by the local Corps and FWS/NMFS
offices result in the Corps becoming aware of potential adverse effects
on ESA-listed species. In most cases, maps and computer data bases are
available on the local level that identify locations of populations of
endangered or threatened species and their critical habitat. Moreover,
for cases which involve a level of potential adverse effects that
require a PCN process of coordination with the other agencies, the
Corps is now specifically requesting any information that the FWS or
NMFS may have on endangered species as part of the PCN consultation.
Thus, based on location of the project, an additional level of review
now exists for these types of projects. Furthermore, the Corps is now
requiring additional PCNs in additional areas and for additional types
of activities to ensure that the potential NWP effects will be minimal,
for example, the lowered threshold levels of NWP 26. This provides for
an additional level of review for many more activities. Any information
provided through the PCN process will be used by the district to make
its ``may affect,'' ``not likely to adversely affect'' or ``no affect''
determination.
In addition to the procedures listed above, each NWP verification
includes General Condition 11, which states that ``no activity is
authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species * * * or which is
likely to destroy or adversely modify the critical habitat of such
species.'' Also, to avoid possible confusion on the part of some
applicants, Condition 11 has been modified to clarify that this NWP
does not authorize the taking of Federally listed threatened or
endangered species. This should help ensure that applicants do not
mistake the Corps permit as a Federal authorization that would allow
the taking of Federally listed threatened or endangered species.
Although the Corps continues to believe that these existing
procedures ensure that the Nationwide Permit Program complies with the
ESA, we will take the following additional steps to provide further
assurance. First, although not required, the Corps will initiate
programmatic formal section 7 consultation with the FWS and NMFS as a
precaution to further ensure that there is no adverse effect on listed
species. We intend that formal consultation will be concluded as soon
as possible but not to exceed two years from the date of issuing the
revised and

[[Page 65881]]

reissued NWPs. Second, the Corps will direct the district offices, in
writing, to meet with appropriate local representatives of the FWS and
NMFS and to establish or modify existing procedures to ensure that the
Corps has the latest information regarding the existence and location
of any Federally listed threatened or endangered species or their
critical habitat in its district. This will ensure that districts have
the best information available to make decisions regarding whether an
activity may affect an endangered species and thus whether or not to
initiate consultation. The Corps districts can also establish through
local procedures, regional conditions or other means of additional
consultation for areas of particular concern that a permitted activity
may affect an endangered species. The Corps believes that the
procedures that we have in place ensure proper coordination under
section 7 of the ESA, as well as ensuring that threatened and
endangered species will not be jeopardized, and that their critical
habitat will not be destroyed.
While we are issuing/reissuing this entire package of NWPs (except
for NWP 26) for a period of five years, we will be working over the
next twenty-four months to collect data, monitor use of these NWPs, and
conduct formal consultation under section 7 of the ESA. This two year
process is intended to provide us with more detailed information on the
types of activities being authorized, the nature and extent of wetlands
and other waters being affected by the NWPs, and potential effects to
the Nation's Federally listed threatened and endangered species.
Immediately following the conclusion of this two year process, we will
use the results of this data collection, analysis, and consultation to
reevaluate the NWPs being issued/reissued today to determine what
modifications are necessary. We will provide to the public, by notice
in the Federal Register, the results of our data collection and
consultation. In addition, we will provide the opportunity for public
comment on changes to the NWP program that might be necessary to ensure
compliance with the CWA, ESA and NEPA. In the interim, we would welcome
any comments or information that the public might wish to provide
relevant to our data collection and consultation process.

III. Comments and Responses on Specific Nationwide Permits

1. Aids to Navigation: Two commenters supported reissuance of this
NWP and no changes were proposed. NWP 1 is reissued without change.
2. Structures in Artificial Canals: No changes to this permit were
proposed by the Corps. One commenter suggested the term ``artificial
canal'' be defined and that the definition exclude historic sloughs or
channels. Another commenter suggested that the term ``structures'' is
too vague and requested clarification on the interpretation of
``principally residential canals,'' whether this NWP authorizes the
removal of structures, and whether it can be used in place of or in
association with NWP 13 for bank stabilization.
While the term artificial canal could be misinterpreted by some to
include channelized natural areas, this is clearly not the Corps
interpretation. Should a Corps district find that individuals are using
NWP 2 in such areas, the district would take appropriate action to
bring such activities into compliance through proper procedures. In
accordance with 33 CFR 322.5(g), structures in previously authorized
canals would have been considered under applications for the original
canal work. In grandfathered canals or in cases were structures may not
have been considered, the DE may use discretionary authority to
evaluate structures if more than minimal adverse effects are
anticipated. Artificial canals within principally residential
developments would be used primarily for personal or recreational
egress and ingress rather than for commercial use. The Corps
procedures, as outlined in the general condition for historic
properties, comply with the requirements of 33 CFR part 325 appendix C,
which implements 36 CFR part 800 and fully satisfies the requirements
of National Historic Preservation Act (NHPA). This nationwide permit is
not to be used for bank stabilization projects; such projects should be
reviewed for authorization under NWP 13. In case(s) of independent
utility, NWP 2 may be used in conjunction with NWP 13 provided
individual or cumulative adverse effects are not more than minimal. We
anticipate that the impacts resulting from the removal of structures in
artificial canals would be similar to the impacts derived from the
original installation. Consequently, removal activities are authorized
by this NWP. NWP 2 is reissued without change.
3. Maintenance: The Corps proposed no changes to this nationwide
permit. One commenter recommended that the NWP not allow restoration
that clearly adversely affects fish and wildlife. Several commenters
recommended that no deviation from the original design be authorized by
the permit since changes could result in significant adverse effects,
while one commenter suggested eliminating the qualification for ``minor
deviation in the structure's configuration.'' Another commenter
requested a list of types of authorized activities and that ``minor''
be defined. Another commenter asked for inclusion of bridge/culvert
replacement that complies with flood-proofing and structural design
standards.
The experience with NWP 3 has been very good; navigable waters have
not been obstructed and impacts are very minor. Furthermore, in many
cases, use of NWP 3 actually enhances the aquatic environment. For
example, replacing a seawall that is damaged often results in
eliminating chronic turbidity caused by erosion. Because all structures
and fills require maintenance periodically and because infrastructure
repair following national disasters is critical to the public welfare,
we believe this nationwide permit is necessary. We are retaining the
provision allowing ``minor deviations'' in order to provide the
flexibility necessary to keep pace with construction technology,
building codes and public safety. Activities with deviations resulting
in more than minimal adverse effects would not be authorized by this
nationwide permit, nor would activities having more than minimal
adverse effects on fish and wildlife. The qualifications attached to
the ``minor deviations'' provision are considered necessary in order to
ensure adverse effects are avoided and minimized to the extent
possible. This NWP is not limited by type of facility. ``Minor'' is not
specifically defined, because the variety of structures and fills
included makes defining the word impracticable. ``Minor'' is meant to
refer to a level of project deviation which will result in a level of
adverse environmental effects associated with the change that are no
more than minimal. Bridge and culvert replacement in compliance with
local requirements and design standards would normally be authorized
under the permit if they meet the limitations and conditions of the
permit.
One commenter requested that NWP 3 authorize activities previously
authorized by 33 CFR 330.3 and equivalent authorizations at the state
level or constructed prior to the excavation rule. NWP 3 specifically
states in the first sentence that 33 CFR 330.3-authorized activities
are included. Similar authorizations under state laws can vary
considerably and may not be consistent with NWP 3; thus a blanket
authorization is not appropriate. This nationwide permit is tied to
structures

[[Page 65882]]

and fills only, and cannot be used to authorize the repair,
rehabilitation or replacement of excavated facilities. The term
``structure'' does not include unconfined waterways, such as streams
and non-lined drainage ditches. The term does include such activities
as bank protection measures, ditches and canals lined with man-made and
placed materials.
Several commenters recommended that fills and structures required
by special conditions in a previously issued permit be covered. The NWP
does authorize maintenance of such structures or fills that were
previously authorized. This NWP does not authorize activities that were
not previously authorized by the Corps.
Another commenter suggested that ESA coordination occur after
catastrophic events when new habitat can be created but then damaged by
repair activities. General Condition 11 and ESA section 7 require
coordination for endangered species. Consideration of improved habitat
is made under section 7.
Another commenter felt maintenance/operation plans should be
approved before the work is conducted. We believe that this would
create an unnecessary burden on the applicant and the Corps for
authorization of maintenance and repair activities with less than
minimal adverse effects.
One commenter believed that the two year construction time period
should be extended, while another felt that two years is long enough.
In our judgment, two years has proven to be a reasonable period that
does not jeopardize environmental protection due to changing
conditions. The permit includes provisions for the DE to extend the
period if warranted.
Another commenter felt that this NWP should not be allowed in
floodplains. We believe the floodplain capacity would not be
appreciably changed for structures or fill maintenance and repair
within the limits of this NWP.
One commenter suggested limiting the impact area and another
suggested the PCN procedure be applied to this NWP. Since NWP 3 only
authorizes structures and fills that are existing, the impacts have
already occurred. Maintaining them creates little or no added adverse
effects, which ensures that effects would be less than minimal.
Therefore, we believe neither of these limitations should be applied.
NWP 3 is reissued without change.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities: As part of the proposed modification of this
permit, we were clarifying that the permit does not authorize the use
of covered oyster trays or clam racks. One commenter questioned whether
the prohibition on clam racks included ``clam bags'' and was concerned
about the scope of ``covered oyster trays and clam racks.'' This
commenter was also concerned about the harvesting of natural live rock,
the inclusion of open water pens in the definition of ``impoundments or
semi-impoundments for culture of motile specimens,'' or qualitative
limitations to define ``small fish attraction devices''; and whether
bottom dredging of sea grass areas or ``bottom tending gear'' for
commercial purposes were authorized by this permit. One commenter
suggested that the permit should specifically exclude commercial scale
net pen culture in addition to oyster trays and clam racks. Another
commenter asserted that shellfish beds should not be authorized under
this permit. This commenter also stated that the exclusion of
authorization of covered racks and the location of racks in wetlands of
sites that support aquatic vegetation was not sufficient. The commenter
cited information that described changes in species diversity
associated with the location of racks on and in intertidal mudflats.
One commenter stated that the permit should be modified to authorize
the releases of scallop and hard clam seed into eelgrass cover. One
commenter urged that small aquaculture projects be excluded from this
permit, while another commenter stated that fish hatcheries should be
specifically excluded. A few commenters suggested that the installation
of fish ladders be included under the permit. One commenter was
concerned about issuance of permits in areas that have been customary
boating channels.
Each of the comments on this nationwide permit are expressions of
concern for unique situations in specific regions of the Nation. It is
not possible to address all the possible limitations and conditions
that may be appropriate at a local or regional level. Nor can we
address all the possible variations in terminology, such as ``clam
bags.'' Therefore, we believe it is more reasonable and practicable for
such comments to be addressed through regional conditions and the
provisions for discretionary authority at the division and district
levels. Corps districts have the authority, working with the divisions,
to restrict use of this NWP in high value areas, such as particularly
vulnerable seagrass beds, if they deem such restrictions to be
necessary. The one change proposed by the Corps was not objected to and
received some comments of support. Therefore, that change has been made
to the permit in its reissuance.
Another commenter suggested that the permit be modified to include
``sites where submerged aquatic vegetation may not be present in a
given year.''
Although we believe that the NWP language includes such sites in
the terminology ``* * * or sites that support submerged aquatic
vegetation * * *'' (i.e., a site may not have submerged aquatic
vegetation present, but could support such vegetation), we have
clarified this in the NWP. NWP 4 is reissued with the proposed changes
and the clarification stated above.
5. Scientific Measurement Devices: The Corps proposed no changes to
this NWP. A few commenters were concerned that the structures permitted
by this NWP could preclude or substantially obstruct movement of
aquatic organisms including migratory fish. One commenter was concerned
that this NWP does not provide any limit on the size or use of the
structures authorized and suggested that a maximum size be included
(e.g., 1000 square feet). This commenter also recommended that the NWP
be conditioned that the structure be used exclusively for purposes
associated with scientific measurement to preclude anyone from using
this NWP to circumvent the permit process. One commenter recommended
that the 25 cubic yard threshold be maintained but to eliminate the PCN
requirement.
We believe the concern for impeding the passage of fish or
shellfish is addressed by General Condition 4. Due to the varying
structures involved in scientific measuring devices, imposing a size
limitation would be difficult and unwarranted. A condition will be
added stating that any structure authorized by this NWP must be
exclusively used for purposes associated with scientific measurements.
We have also modified the PCN requirement so that applicants will need
to notify only the Corps. NWP 5 is reissued with the modifications
described above.
6. Survey Activities: The Corps-proposed changes to this nationwide
included allowing discharges associated with the placement of
structures necessary to complete a survey for historic resources and
soil surveys. Most commenters supported the proposed changes. A few
commenters requested that the placement of survey markers such as
benchmarks and monuments be authorized under this NWP. One commenter
felt that mechanical clearing of survey lines should be included, but
limited to 8 to 10 foot widths. A few

[[Page 65883]]

commenters requested that limited discharges and structures necessary
for the recovery of artifacts and information be included in the NWP
rather than excluded as proposed. Many commenters asked for the
exclusion of seismic exploratory operations involving the use of
explosives, such as ``3-D'' operations, due to the extensive scope and
environmental impacts of such activities. It was proposed that the term
``core sampling'' be changed to ``soil, rock and sediment sampling''
and changing ``exploratory-type bore holes'' to ``exploratory-type
holes'' because while most sampling of rock may be by coring, much of
the soil sampling is by other methods (i.e., augering, hand shovel,
backhoe, etc). Other commenters asked that the permit language
specifically indicate that no permanent structures are authorized, all
fills be removed and that the area be restored to its original state.
The placement of survey markers such as benchmarks and monuments is
authorized under NWP 18 within limitations. Activities necessary for
the recovery of artifacts and information are not authorized by this
NWP which is intended for authorization of survey activities only to
ensure the minimal adverse effects limitation is not exceeded.
Operations involving the use of explosives such as 3-D operations with
blast shock during seismic tests, or mechanical landclearing
activities, have not been categorically excluded. These activities are
either unique to, or differ between, geographical regions of the
Nation; therefore, regional conditions are the best way to address
concerns about minimizing the effects of 3-D seismic surveying. Corps
districts will be directed to coordinate with any Federal, state, or
tribal authority expressing a concern about 3-D seismic surveying for
the purpose of developing regional conditions to address those
concerns, as appropriate. Of course, use of towed explosive, pneumatic
or seismic devices that do not involve construction, excavation or
other work in sediments do not require any permit from the Corps. We
have conditioned this NWP to clarify that it does not authorize any
permanent structures or fills. The current wording of the NWP does
include, but is not limited to, the use of augers, shovels, backhoes,
and other small equipment, as well as core drills. NWP 6 is reissued
with the proposed changes and the clarification stated above.
7. Outfall Structures: The Corps proposed no changes to this NWP. A
number of commenters objected to re-authorization of this NWP or stated
that work in tidal wetlands or areas supporting anadromous fishes
should be excluded. Commenters stated that outfalls have caused the
loss of wetlands and may trap or entrain fish. Several commenters
stated that the NWP should contain a requirement to include measures in
the design to prevent such fish loss. One comment indicated that work
in areas that may be contaminated should be excluded. Another stated
that activities authorized by this NWP have significant adverse
environmental effects.
Regional conditioning of the nationwide permit and the provisions
for discretionary authority at the division and district levels will
provide tools necessary to protect fish, wetlands, and water quality,
and to address any other environmental effects that potentially are
more than minimal.
One commenter requested elimination of the notification requirement
when the construction of the outfall requires less than 25 cubic yards.
Several commenters called for retaining the notification requirement.
The notification requirement will be retained to allow review of
proposed projects for greater than minimal adverse environmental
effects and impacts to navigation.
Several commenters stated that this permit violates section 404(e)
of the Clean Water Act because the discharge structures may not be
similar in size or in the material discharged. One commenter called for
authorizing all intake structures under this NWP.
The activities authorized by this NWP are similar because they are
similar in scope and purpose and are reviewed and approved pursuant to
the National Pollutant Discharge Elimination System (NPDES) under
section 402 of the Clean Water Act. The relationship of these projects
to section 402 assists the Corps in arriving at a minimal adverse
effects determination. The inclusion of all intake structures under the
NWP would make such a determination not possible. NWP 7 is reissued
without change.
8. Oil and Gas Structures: The Corps proposed minor changes to this
nationwide permit to clarify that Corps review for taking discretionary
authority is limited to the effects on navigation and national
security. One commenter was concerned that work could occur in
environmentally sensitive areas. Another commenter suggested that
pipelines be excluded from use of this NWP. A few commenters believed
that this NWP should not be reissued because of potential impacts
associated with oil and gas exploration and that this NWP does not meet
the ``similar in nature'' or ``minimum effects'' threshold of section
404(e) of the Clean Water Act. One commenter recommended that a PCN be
required for this NWP. A few commenters believed that individual state
401 water quality certification should be required for these
activities.
The Corps believes this NWP is very restrictive. The only
structures that can be authorized under this NWP are those within areas
leased by the Department of the Interior, Minerals Management Service.
The general environmental concerns are addressed in the required NEPA
documentation the Service must prepare prior to issuing a lease.
Further, the Corps involvement is only to review impacts on navigation
and national security as stated in 33 CFR 322.5(f). NWP 8 is reissued
with the proposed clarifications.
9. Structures in Fleeting and Anchorage Areas: The Corps proposed
no changes to this NWP. One commenter requested clarification of the
term ``structures'' and the definition of ``fleeting and anchorage
areas,'' and expressed concern for secondary impacts of vessel
discharges, and impacts from shading submerged aquatic vegetation by
the structures.
The NWP is specific to the purpose of moorage of vessels, thus
structures will be small compared to the vessels. Fleeting and
anchorage areas are determined by the U.S. Coast Guard and indicated on
navigation charts. They are for concentrating vessels in an area that
minimizes navigation impacts to other vessels while the former vessels
wait for unloading cargo, etc. Shading impacts are not expected as
these areas are usually in deep water and the structures and buoys
seldom produce measurable shading. NWP 9 is reissued without change.
10. Mooring Buoys: The Corps did not propose changes to this NWP.
One commenter expressed concerns about the limitations or
specifications on the size or number of mooring buoys, and the
environmental restrictions on location.
Comments regarding specific areas that should be excluded or other
special restrictions that are needed to protect special areas such as
shellfish beds or submerged aquatic vegetation should be dealt with by
contacting the appropriate district and requesting the addition of
regional conditions. Based on our experience, we do not anticipate that
the mooring buoys and anchorage systems will have more than minimal
adverse effects, either individually or cumulatively. NWP 10 is
reissued without change.
11. Temporary Recreational Structures: The Corps proposed no
changes to this NWP. A few commenters were concerned that the NWP may

[[Page 65884]]

cause removal of riparian vegetation and alter the nearby shore aquatic
environment, and that the Corps should define ``temporary,'' ``small
floating docks'' and ``seasonal''. A commenter requested that the NWP
be expanded for certain commercial activities other than jet ski,
parasailing, and similar rentals, provided the activity is of temporary
duration.
We disagree with the approach of attempting to define national time
limitations on temporary or seasonal structures because of the seasonal
variations for different recreational activities from region to region.
Regional conditions can be developed for the NWP and/or the District
Engineer may use discretionary authority, on a case-by-case basis, if
duration, structure size, or location require such action. Limiting the
NWP to discrete events would greatly reduce its utility. This
nationwide permit was proposed to authorize temporary recreational
structures which overall would have only minimal adverse effects. Given
this, and the discretionary authority provisions, the Corps believes
that the NWP adequately balances the need for temporary recreational
structures in waters of the United States, while protecting riparian
and aquatic resources. NWP 11 is reissued without change.
12. Utility Line Backfill and Bedding: The Corps proposed rewording
of this NWP to include discharge of dredged material from the trench
excavation, and requested comments establishing limitations for special
aquatic sites. A large number of comments addressed NWP 12. Based on
the comments we received and the Corps internal evaluation of the
implementation of NWP 12, we have made substantial changes to this
permit. We have added a PCN review for four situations: for any
activity that would be authorized under NWP 12 that involves more than
500 linear feet in waters of the United States; for any project that
involves mechanized landclearing of forested areas; for any utility
line that is placed parallel to a water of the United States; and for
any activity involving authorization under section 10 of the Rivers and
Harbors Act of 1899. We believe that these increased limitations will
ensure that no more than minimal adverse effects to the aquatic
environment will occur.
The comments were closely split between supporting issuance without
changes and supporting issuance with limitations. Several commenters
were opposed to reissuance based on environmental impacts. Many
commenters, requesting limitations, made suggestions on those limits:
200 linear feet, 1,000 linear feet in forested wetlands, 6 inch
diameter utility line, 0.33 and 0.5 of an acre. Some commenters
suggested PCN procedures above particular limits: 6 inch diameter line,
0.5 of an acre. The allowed duration of side casting also received
suggestions: no side casting, 14 days, 30 days. Work with a maximum
width of 30 feet was suggested by two commenters.
The variation in wetland values across the nation dictates that a
limitation, or threshold for PCN, not overly restrict use of the NWP or
unnecessarily add administrative burden to any large geographic area.
Potential impacts will vary with the construction methods. The acreage
limitation presents the possibility that high value wetlands could
suffer more adverse effect at less acreage than the limitation/PCN
threshold, but low value or easily recovering wetlands would require
unnecessary added administrative procedure when exceeding an acreage
limitation/threshold. An acreage limit of 0.33 acres would allow a
nearly 2\1/2\ mile long utility line trench that was one foot wide.
This could be a minimal impact in some areas, but may require an
individual permit in other geographic areas and/or wetland types or
values.
Based on careful review of all the comments, we have determined
that certain limitations should be established and that certain
activities will require a Corps-only PCN. We have added section 10 to
this permit to allow districts to authorize projects that cross
navigable waters. To ensure the navigable capacity of such waters will
not be adversely affected, we have also established a PCN for any
authorization that involves work in section 10 waters. We have also
explicitly stated that mechanized landclearing, including landclearing
of forested wetlands, for overhead utility lines may be authorized
under NWP 12. To ensure that only minimal adverse effects will occur,
we have established a PCN requirement for any utility line that will
require landclearing of forested wetlands. We have also included the
requirement for a PCN whenever a utility line is placed parallel to a
stream bed. Finally, in order to ensure that only minimal adverse
effects will occur, we have established a PCN requirement for any use
of NWP 12 that exceeds 500 linear feet in waters of the United States.
Several commenters recommended that stream crossings be allowed
only if perpendicular to the stream. One commenter suggested that bank
stabilization must occur by segments rather than at the completion of
the entire project. Another stated that laying utility lines on bottoms
of streams should be discouraged. Several recommended that alternative
routes be examined more thoroughly. We have added several PCN
requirements, including one for situations where a utility line is
proposed to be placed parallel to a stream bed. Generally, utility
lines are placed perpendicular to a stream and we are, with this
notice, directing the Corps districts to critically evaluate any
projects that may be proposed to be placed parallel to a water of the
United States. Moreover, we believe that it should be an exceptional
case where a district authorizes a utility line within, or within
wetlands parallel to, a stream bed for more than 100 feet. With the
added PCN review, by the Corps, for any project that should be subject
to a generalized alternative analysis (i.e., more than simply adjusting
the alignment slightly to ensure minimal adverse effects), the district
will use its discretionary authority to require an IP.
Several commenters believe that this permit should not be used in
combination with other permits (see additional discussion on stacking
permits). This restriction would be too limiting for many projects that
have minimal adverse effects for the entire project including utility
lines. At times, utility lines are considered ``single and complete
projects'' as they support existing developments but will also support
other future development. We have added a PCN for any stacking of NWP
12 with any other NWP.
Several commenters appeared to be confused with the word
``subaqueous''. Two commenters suggested slightly different wordings
and deleting ``subaqueous''. The term subaqueous referred to below the
surface of the ground (wetland) or water surface; a line laid on the
surface does not require a section 404 permit but any mechanized
landclearing to lay such a line would. We have dropped ``subaqueous''
as we feel the reference is not needed and confusing. One commenter
desired authorizing maintenance of landclearing. Most maintenance
consists of cutting the wetland vegetation above the soil, which is not
regulated under section 404 when the soil is not disturbed. If
maintenance of a utility line corridor involves landclearing as defined
in 33 CFR 323.2(d)(1), it would require additional authorization.
One commenter was confused about the ``single and complete
project'' requirement for an NWP combined with an individual permit in
relation to the required section 10 permit for utility

[[Page 65885]]

lines crossing navigable waters. The NWP authorization covers the
excavation and backfill portion in conjunction with the remaining
single and complete portion of the line that continues beyond the
navigable water, usually in wetlands. ``Single and complete'' for a
linear project under the NWPs is defined at 33 CFR 330.2(i); briefly, a
linear project is single and complete at each widely separate water
crossing. Also, the navigable water portion of the structure (utility
line) required a permit under section 10 because it was not included in
NWP 12 authorization. Although we have added section 10 to NWP 12, the
single and complete provision for linear projects remains in effect.
In the past, NWP 12 has not included Section 10 authorization,
which has added an individual permit procedure (usually a Letter of
Permission) to the authorization of a utility line in navigable waters.
The Corps has decided to add section 10 authorization to minimize the
administrative procedures and decrease the time needed for
authorization. However, we are requiring a PCN for review of navigation
impacts and requiring procedures for notifying the National Oceanic
Atmospheric Administration for charting the utility line to protect
navigation.
A few commenters were confused by the term ``parallels a water.''
The Corps had suggested, in the proposal, that care should be taken
during the placement of a utility line parallel to a waterbody. We are
concerned with the potential adverse effects associated with the
placement of a utility line parallel to a waterbody and, therefore,
have modified and clarified this language. We have removed the proposed
language and have added a PCN requirement for the placement of a
utility line within a water of the United States parallel to a stream
and have clarified that ``parallel to a stream'' means installation of
a utility line lengthwise to the bed of the stream. Furthermore, we
have added a PCN requirement for proposed projects that would involve
placing utility lines along stream beds (see discussion above). Two
commenters suggested clarifying whether the NWP included discharges for
access roads and foundations for structures supporting overhead
transmission lines. Structural fills for overhead utility line supports
are often permitted by NWP 25. Access roads could be authorized by NWP
14 or 26 in some cases. The Corps has clarified that mechanized
landclearing is authorized for overhead utility lines as long as the
width is kept to the minimum necessary. Furthermore, as discussed
above, we have added a Corps-only PCN for landclearing forested areas.
Access roads and foundations for overhead lines are not authorized. NWP
12 is reissued with modifications as discussed above.
13. Bank Stabilization: The Corps proposed no changes to this NWP.
Two commenters wanted to keep the current language of the nationwide
permit with no changes, while another expressed general support.
Several commenters objected to limitations on length of project area or
quantities of fill, particularly for flood control structures. A few
commenters stated that the limitation of one cubic yard of fill per
linear foot should not include any earthen backfill to return the bank
to a former footprint, and that the limitation should apply only to
fills that encroach into the pre-existing waterway. Their reasoning is
that this would allow reconstruction of failed levees and road
embankments and would not result in a loss of wetlands or jurisdiction
relative to the pre-failure condition. These commenters also note that
the prohibition of any fill in any special aquatic site is a
restriction that unduly constrains projects and often renders this NWP
inapplicable. They recommend that impacts to special aquatic sites of
up to 0.1 acres be allowed without notification, and that greater
acreage be allowed with notification. These commenters further
recommend that use of biotechnological slope protection or other
methods relying on vegetative stabilization be allowed greater PCN
thresholds to encourage such usage.
We believe expansion of the scope of this NWP would result in a
potential for more than minimal adverse effects. The permit is designed
specifically for the protection of existing bank lines at the time of
protection and does not authorize filling to restore the original bank
line or any other intermediate alignment of the bank. Adjustment in the
alignment of the bank is allowed only for reasonable and practical
design and construction considerations within the limitations of NWP
13.
Two commenters recommended removing the special aquatic site
restriction for ephemeral watercourses when there is no flow under the
premise that such areas are defined as wetlands under a broad
definition. These commenters also recommend that the nationwide permit
recognize that there is likely to be a construction zone 30 feet or
greater along the bank within jurisdictional areas where project
impacts will be incurred for installation of bank protection.
We disagree that wetlands in ephemeral systems are necessarily of
lesser value than other waters simply because they do not contain water
at all times of the year. Therefore, removal of special aquatic site
restrictions is not warranted. We do recognize that certain bank
stabilization projects necessitate keying in the toe of the slope to
ensure adequate protection, and that such work requires a construction
footprint that will impact additional areas beyond the waters of the
United States. If any such adverse effects are likely to be more than
minimal for a particular waterbody, the Corps will add regional
conditions to ensure that only minimal adverse effects will occur.
One commenter stated that notification is an unnecessary level of
Federal review, and that it usurps the states' authority to assess
site-specific impacts to water quality under section 401.
This is not an expansion of authority because notification has been
a condition of this nationwide permit since its last re-authorization
in January 1991. Likewise, it does not usurp the authorities of the
states pursuant to section 401 of the Clean Water Act. A state may
condition its 401 water quality certification for this NWP so that it
will review projects over 500 feet in length, and issue or deny site-
specific section 401 certification.
Many commenters were opposed to the reissuance of this nationwide
permit because they perceived it to be used in ways inappropriate to
its intended use, such as a precursor to channelization of
watercourses. Specifically, they suggested that permittees might use
this nationwide permit to construct flood control works, and how
riprapping affects existing hydrology with adverse effects on habitat
and adjoining properties. Several commenters stated that this
nationwide permit should specifically exclude channelization, noting
that bank stabilization projects can adversely affect habitats adjacent
to jurisdictional waters that may support plant or animal populations
that are equally limited. We agree that channelization is an
inappropriate use of this nationwide permit. It is the responsibility
of each district to determine whether a particular project is
contributing to greater than minimal cumulative adverse effects, and to
exercise discretionary authority if they believe such effects are
occurring.
Several commenters noted that this nationwide permit should be used
selectively on a regional or watershed basis to prevent cumulative
adverse effects in sensitive habitats. Others stated that this
nationwide permit needs

[[Page 65886]]

better monitoring and compensatory mitigation, or should always require
compensatory mitigation. One commenter stated that this nationwide
permit should not be used in conjunction with any other nationwide
permit.
We believe the provisions for regional conditioning and asserting
discretionary authority will ensure that greater than minimal adverse
effects do not occur. Mitigation is being required where appropriate to
achieve minimal adverse effects, but we do not believe that all bank
stabilization projects require mitigation because many projects have
minimal effects, in fact often positive effects, on aquatic resources
without mitigation. For example, riprap on an eroding barren bank will
typically increase habitat diversity and reduce turbidity in downstream
waters.
One commenter stated that because erosion has occurred after some
projects permitted under this nationwide permit were constructed, the
Corps should not reissue it unless it can demonstrate that such
projects will perform as expected. Another commenter noted how some
projects of inadequate design integrity would eventually wash
downstream with potentially adverse effects on water quality, aquatic
habitat, public safety, and aesthetics.
The Corps evaluates projects to determine if they are in compliance
with Clean Water Act requirements, including whether the project will
only result in minimal adverse effects for NWPs, and to ensure that
they are not contrary to public health or safety. We believe that the
bank stabilization methods employed are generally effective even in
cases where there is no reporting to the Corps. Although a washout of
shore protection could occur, such unusual flows would also wash out
unprotected shorelines and structures or natural features such as
trees, rocks, and the like, all of which would wash downstream.
One commenter questioned whether this nationwide permit could be
used in lieu of NWP 2 for stabilization projects in artificial canals.
Another commenter recommended that this nationwide permit should be
used only on artificial canals.
NWP 13 can be used in lieu of NWP 2 where appropriate. However,
restricting its use only to artificial canals would unduly restrict its
utility.
Several commenters recommended retaining the notification
requirements, particularly for those projects in excess of 500 linear
feet. Several commenters called for lowering the PCN threshold to 100,
200 or 300 feet to more appropriately address cumulative impacts. One
commenter suggested that the cubic yardage limit for notification be
100,000 cubic yards. Several commenters stated that the nationwide
permit should specifically mention the types of bank stabilization
allowed, with an emphasis on methods that did not include landscaping.
Many others recommended excluding certain materials such as gravel,
asphalt, tires, automobiles, building rubble, poured concrete, driven
sheet piles, and structural timber bulkheads. Two commenters stated
that projects authorized under this nationwide permit should not
include seawalls or bulkheads on open or natural shorelines and should
not allow backfilling for the purpose of creating fast land or
reclamation. Three commenters stated that use of concrete rubble should
only be used if it meets acceptable riprap standards for size and
density, is free of contaminants, is faced with acceptable rock riprap,
and has all rebar cut flush with the surface.
We believe the terms and conditions that prohibit discharges in
special aquatic sites (including wetlands) prohibit the use of
unsuitable and toxic materials, limit the shore stabilization to 1
cubic yard per linear foot, and require that the proposed stabilization
be the minimum necessary, are sufficient to alleviate these concerns.
In some cases where the adverse effects could be more than minimal
(i.e., discharges on more than 500 feet of shoreline, and/or greater
than one cubic yard per linear foot of shoreline) notification to the
DE is required. Also, where potentially high value aquatic resources
may be impacted with less than 500 feet of bank protection, the Corps
division can regionally condition NWP 13. The intent is to accommodate
a wide range of users, techniques and materials with minimal time delay
and maximum protection of valuable wetland resources. NWP 13 is
reissued without change.
14. Road Crossing: The Corps proposed no changes to this NWP. Many
commenters suggested that this NWP should not be reissued or should be
modified for a number of reasons including the following: it should not
be used for large road projects with multiple wetland crossings; the
breadth of the road crossings are not constrained; the acreage
allowance should be reduced; and this NWP is most frequently stacked
with other NWPs, causing adverse effects to exceed minimal. A few
commenters recommended that a maximum acreage impact limit be applied
to large road projects with multiple crossings of waters of the United
States (including wetlands and other special aquatic sites).
The Corps regulatory policy regarding linear projects and what
constitutes a single and complete crossing is well established (RGL 88-
6). Individual channels in a braided stream or individual arms of a
large, irregularly-shaped wetland or lake, etc., are not separate
waterbodies. For linear projects, the single and complete project
requirement for individual NWPs will be applied to a waterbody at a
single location. That is, each waterbody impacted by a roadway will be
considered a single and complete crossing at that location. Where a
roadway intersects a single waterbody such as a meandering river at
separate but distinct locations, each crossing is considered a single
and complete crossing. The purpose of the ``single and complete''
language is to preclude situations where one project will repeatedly
crisscross one waterbody when such multiple crossings can be
practicably avoided.
Several commenters expressed support for this NWP as proposed.
Others indicated that there should be no limits on the length or area
of a crossing. Two commenters suggested that the NWP 26, 1 to 10 acre
provision be incorporated and that acreage be the only controlling
limit. Two other commenters recommended the length be increased to 400
linear feet and one suggested that the acreage be increased to acre. A
few commenters opposed the inclusion of the ``Notification'' general
condition in this NWP.
We carefully considered the suggestions to limit the width of the
roadway as well as to expand the length and maximum acreage for the
roadway. We concluded, however, that the limits in the NWP as proposed
represent a tested balance. With regard to stacking NWP 14 with other
NWPs, we have conditioned this NWP to not allow NWP 18 or NWP 26 to be
combined with it for the purpose of expanding the allowable road
crossing footprint. In addition, a Corps-only PCN is required any time
this NWP is combined with any other NWP. (See discussion on ``Stacking
of NWPs'' in section II above.). NWP 14 is reissued with the
modification discussed above.
15. U.S. Coast Guard Approved Bridges: The Corps proposed no
changes to this NWP. A few commenters expressed concerns about the
impacts associated with the construction of access fills, fill removal,
and restoration of preconstruction grades. Another commenter was
concerned about revegetation with native species after completion of
such preconstruction

[[Page 65887]]

grade restoration activities. One commenter encouraged inclusion of
conditions to require excavation and removal of old approach fills when
they have been replaced. Another commenter stated that the impacts
related to Coast Guard bridges can be significant and that issuance of
the NWP contributes to an incomplete and less than thorough review by
the Coast Guard. A few commenters felt that the Corps had
inappropriately delegated Section 404 responsibility to another agency.
Based on the requirement of this NWP and the ability of the DE to
assert discretionary authority should the nature of the impacts
warrant, we believe that this NWP is an efficient means to regulate the
construction of bridges. The regulations also allow for the development
and inclusion of conditions to address particular project aspects such
as removal of old approach fills, revegetation specifications, etc. The
comments regarding the delegation of regulatory authority are
apparently based on the misinterpretation of the permit language. The
Coast Guard has been given the task of reviewing such bridge
construction pursuant to section 9 of the Rivers and Harbors Act of
1899. A Department of the Army permit pursuant to section 404 of the
Clean Water Act is still required for the discharge of dredged or fill
material into waters of the United States associated with the
construction of the proposed bridges and causeways. NWP 15 is reissued
without change.
16. Return Water From Upland Contained Disposal Areas: The only
change the Corps proposed to this NWP was a change in wording to note
that, in certain circumstances, dredging may now require a section 404
permit. One commenter requested that the NWP require an NPDES permit. A
couple of commenters recommended that the NWP not be applicable to
dredged material taken from areas of known sediment contamination or
where there is reason to believe that the discharge is contaminated. A
few commenters stated that water quality violations could result from
the NWP unless it is limited to the activities authorized by, and
operating in conformance with, currently valid permits or exemptions.
One commenter suggested that all return water be tested for
contaminants. A couple of commenters thought that the original text and
the clarification were unclear without specifying when the activity may
require a section 404 permit relative to the excavation rule, or when a
section 10 permit may be required.
This NWP authorizes the return of effluent to waters of the United
States from upland contained disposal areas, and is not intended to
address the dredging activity. However, a Department of the Army permit
pursuant to section 10 is required for structures or work in, or
affecting, navigable waters of the United States, as that term is
defined in 33 CFR parts 322 and 329. A Section 404 permit is required
for any addition or redeposition of dredged material associated with
any activity that destroys or degrades a water of the United States as
defined in parts 323 and 328, unless the discharger demonstrates to the
satisfaction of the Corps or EPA, as appropriate, prior to the
discharge, that the activity will not have such an effect. The effluent
subject to NWP 16 has been administratively defined as a discharge of
dredged material. Based upon Corps experience and knowledge of dredging
and disposal operations, we believe that the technology is readily
available to control the quality of the return water from contained
upland disposal sites. Any adverse environmental effects resulting from
this type of activity would be minimal, provided the effluent meets
established water quality standards and adequate monitoring of the
activity is performed to assure compliance with these standards. With
this in mind, it is our intent to provide the states an opportunity to
review each activity under this NWP authorization to assure compliance
with state water quality standards. We see no need to require
additional state review unless the water quality certification for the
NWP has been denied. The prospective permittee must receive an
individual certification or waiver from states that have denied water
quality certification for the NWP authorization. The Corps has no
authority to determine NPDES program requirements. NWP 16 is reissued
with the proposed changes.
17. Hydropower Projects: The Corps proposed no changes to this NWP.
The comments received addressing NWP 17 were all related to the
potential impacts associated with hydropower projects and stated the
position that NWP 17 is contrary to the NWP program's provision
allowing only activities of similar nature and of minimal impacts.
We are maintaining the notification requirement for this NWP to
enable us to assess the nature of the impacts associated with each
project and whether to exert discretionary authority. In addition, the
Federal Energy Regulatory Commission has the responsibility of
examining environmental impacts for those small hydropower projects at
existing reservoirs. NWP 17 is reissued without change.
18. Minor Discharges: The Corps proposed a modification to the
wording of this NWP to clarify how the Corps measures excavation
activities for the purpose of determining compliance with the NWP. This
was based on existing guidance developed after the Corps revised the
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to
clarify when the Corps regulates incidental discharges of dredged
material associated with excavation activities. (See August 25, 1993,
Federal Register, 58 FR 45008.) Based on this existing procedure, this
clarification does not affect the number and type of activities that
are regulated under this NWP. When measuring the quantity of the
discharge of dredged or fill material, the Corps will include the
volume of any excavated area (i.e., the volume of the substrate
excavated) which is below the plane of the ordinary high water mark
(OHWM) or high tide line (HTL). Many commenters expressed uncertainty
regarding how to measure the 25 cubic yards of discharge authorized by
this NWP. Some commenters requested that the allowable area of impact
be increased to 2/10 acres. The Corps continues to believe that the
current volume and acreage limits are, and have proven to be,
appropriate to ensure that the adverse effects are no more than minimal
for the purpose of authorization by this NWP and is not changing those
limits. We are providing the following guidance to clarify how NWP 18
quantities are measured.
How to determine quantities under NWP 18: NWP 18 applies to all
waters of the United States. For projects that are;
Below and waterward of the OHWM or HTL:
Volume: The cubic yardage of any dredged or fill material placed;
plus,
The cubic yardage of the substrate excavated.
Acreage: The acreage of any areas that are filled, excavated,
flooded and drained.
Landward of the OHWM or HTL:
Volume: Not applicable. Only acreage limits apply.
Acreage: The acreage of any areas that are filled, excavated,
flooded and drained.
For projects that are both below and waterward of the OHWM or HTL
and that are landward of the OHWM or HTL, the acreage is the sum of the
two acreages as determined above, while the volume is that measured
below and waterward of the OHWM or HTL. For example, a permittee may
place 50

[[Page 65888]]

cubic yards in a wetland landward of the OHWM provided the fill does
not exceed \1/10\ of an acre and the District Engineer determines that
the impacts are minimal. In this example, there was no material placed
below and waterward of the OHWM or HTL, therefore the cubic yard
(volume) limit was zero and not exceeded. Furthermore, the total
acreage was less than \1/10\ acres. NWP 18 may be combined with NWP 19
to authorize activities in navigable waters of the United States (i.e.,
Section 10 waters). NWP 18 is issued as proposed.
19. Minor Dredging: The Corps proposed a modification to this NWP
to authorize, under section 404 of the Clean Water Act, the incidental
discharges associated with the dredging activities in navigable waters
of the United States. This was necessary after the Corps revised the
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to
clarify when the Corps regulates incidental discharges of dredged
material associated with excavation activities. (See August 25, 1993,
Federal Register, 58 FR 45008.) This clarification does not affect the
number and type of activities that are regulated under this NWP. Many
commenters supported keeping the quantity limit at the existing level.
We agree and continue to believe that the 25 cubic yard limit is
acceptable. We have allowed and will continue to allow NWPs 18 and 19
to be used for the same project in section 10 navigable waters of the
United States. NWP 19 cannot be used in section 404-only waters. We
believe that the requirement of NWP 19 that prohibits excavation in
wetlands, coral reefs, sites supporting submerged aquatic vegetation,
and anadromous fish spawning areas, and the requirement of NWP 18 that
requires notification in special aquatic sites, including wetlands, and
the requirement of NWP 18 that requires notification in excess of 10
cubic yards, will ensure that impacts resulting from these activities
will be minimal. For example no more than 35 cubic yards could be
excavated from navigable waters of the United States without a
notification to the Corps. Furthermore, no activity between 35 and 50
cubic yards of combined excavation and discharge could occur without a
notification to the Corps and a Corps determination that the adverse
effects would be minimal. NWP 19 is issued as proposed.
20. Oil Spill Cleanup: The Corps proposed no changes to this NWP.
One commenter suggested a regional condition to require that activities
be conducted in conformance with the National Response Team Integrated
Contingency Plan Guidance. Even though this guidance is used to assist
an applicant to develop one plan to satisfy several applicable laws, it
is strictly voluntary on the applicant's part to develop one
consolidated response plan. The Corps believes it is most important to
verify that the response is conducted in accordance with the Spill
Control and Countermeasure Plan required by 40 CFR 112.3 and any
existing state contingency plan, and that the regional response team
(if one exists) concurs with the proposed containment and cleanup
effort. This NWP authorizes the structures and fills used to effect the
oil spill cleanup. Other Federal and state agencies have lead
responsibility to administer oil pollution laws. NWP 20 is reissued
without change.
21. Surface Coal Mining Activities: The Corps proposed the
consideration of expanding this NWP for mining activities on previously
mined lands that have not been subject to restoration. Several comments
supported the proposed inclusion of previously mined areas and a few
expressed opposition. Some commenters stated that this proposal should
not apply to wetlands restored under the Surface Mining Control and
Reclamation Act (SMCRA) of 1977 or NWP 27. Another commenter questioned
whether the NWP applies to pre-1977 SMCRA. Comments about mitigation
presented a wide range of possibilities: Support for on-site mitigation
after completion of mining; mitigation ratio should be set at 1:1 on-
site as proposed; flexibility is needed to apply mitigation on-site
and/or off-site; and mitigate off-site before mining begins; mitigate
concurrent with mining. One commenter stated that restricting the
mitigation to on-site would economically stop a mining operation. Many
commenters opposed the bond, stating that this is already required by
the SMCRA and at least some state agencies.
The remining of abandoned areas requires application under Title V
of the SMCRA. As with new mining, the Office of Surface Mining (OSM)
coordinates such proposals with the Federal and state resource agencies
and determines whether or what mitigation is required. The Corps has
decided that specific language referencing remining abandoned mines is
not required within the nationwide permit text. The NWP, as worded,
will allow remining of abandoned mines. The Corps will strongly
encourage remining of abandoned mines where the wetlands are of low
value, rather than mining new areas with wetlands that were not
previously disturbed. The Corps will review the Title V application for
compliance with the NWP. The Corps will only require a bond for
mitigation when OSM or the state agency has not required a bond.
Requiring a bond in certain cases is consistent with existing policy.
(See 33 CFR 325.4).
One commenter expressed concern over the area impacted (i.e.,
ancillary activities). The NWP specifically applies only to the coal
excavation area. Additionally, any facilities, such as buildings, to be
placed in waters of the United States would require separate
authorization by the Corps.
Several commenters desired restrictions such as set-backs, no
stream relocations, no impacts to wetlands which would be difficult to
replace, and acreage limits. Another requested an exemption from
mitigation for certain chemical compositions of the wetland soil. We
believe that each case will be so specific that it is best reviewed
case-by-case.
A couple of commenters stated that the Corps was delegating its
authority to the OSM and that this NWP did not comply with section
404(e). Minimizing duplication of Federal regulation is one of the
goals of the President's Wetland Plan and is one of the principal
purposes of NWP 21. We believe that the Corps should not duplicate the
intensive review performed by OSM in coordination with other Federal
and state resource agencies. OSM complies with the same Federal
environmental laws, such as National Environmental Policy Act, Fish and
Wildlife Coordination Act, Endangered Species Act, and National
Historic Preservation Act as the Corps does in executing its regulatory
program. The Corps reviews the Title V information to assure that the
impact analysis and mitigation are in compliance with the Corps policy
and regulations. The NWP authorization is not valid until the mining
activity has been authorized by OSM or by a state with an approved
Title V program. To assure that the Corps receives a complete
application, we have revised the NWP to include a requirement for an
OSM or state-approved mitigation plan. NWP 21 is reissued with the
modifications described above.
22. Removal of Vessels: The Corps proposed no changes to this NWP.
However, a few commenters requested that the term ``minor fills'' be
the same as that for Nationwide Permit 18, and one commenter requested
that this NWP require a PCN that would specifically require contacting
the State Historic Preservation Officer (SHPO) to ensure against damage
to vessels potentially eligible for listing in the National Register.
Another commenter requested

[[Page 65889]]

notification to the SHPO since the Abandoned Shipwreck Act gives states
title to, and management authority of, certain shipwrecks.
The criteria described in Nationwide Permit 18 for minor discharges
of dredged or fill material could be used as a guide in evaluating the
environmental impacts, but is not meant to be a definition of ``minor
fill''. This term is intended to be subject to the DE's interpretation
on a case-by-case basis as a project is being evaluated. The existing
language of NWP 22 does not allow its use for any ship or vessel that
is listed or eligible for listing unless the district determines that
the activity complies with the National Historic Preservation Act. The
Corps will, in any particular case, coordinate with the SHPO regarding
historic properties, including concerns with regard to the Abandoned
Shipwreck Act. We believe that the restrictions within this NWP in
conjunction with General Condition 12 and the Corps regulations at 33
CFR 330.4(g), are sufficient to protect against damage to historic
properties. NWP 22 is reissued with no changes.
23. Approved Categorical Exclusions: The Corps proposed no changes
to this NWP. A few commenters supported expansion of Nationwide Permit
23 to cover state environmental program approvals, especially for flood
control work, and all emergency work by a public agency.
State programs are not required to comply with NEPA and states have
varying environmental protection programs. Therefore, the Corps cannot
base a nationwide permit on state approvals as NEPA Categorical
Exclusions (CE). Regional and programmatic general permits are
effective tools that can be developed at the district level for state
programs that meet or exceed the Federal CWA requirements. Emergency
work can normally be authorized under other nationwide permits such as
NWP 3 and 37, or the Corps emergency permit authority.
A few commenters requested the NWP be regionalized with regional
conditions and asked that districts publish public notices for proposed
CEs and lists of approved CEs. The Division Engineers have the
authority to add regional conditions to any nationwide permit and are
currently in the process of considering recommendations for conditions
on these nationwide permits. All CEs are available in the Federal
Register and we intend to make them available on our Internet homepage
which is currently being developed.
A number of commenters opposed continuation of the existing
nationwide permit. They stated that the permit is often misused,
especially by the Highway Departments. Most of these commenters called
for revision of NWP 23 to require periodic review (every 5 years at the
renewal of the general permit) and assessment of approved CEs (citing
new knowledge and outdated agency Environmental Assessments), limits on
the area of wetlands that may be impacted (similar to Nationwide Permit
26), and limiting (to 25-50 feet) or excluding stream channelization.
Some commenters called for excluding bridges and culverts in those
streams that support fish, and excluding stacked concrete slabs that
create low water dams.
The Corps does, upon being furnished a notice of an agency's CE,
solicit public comment, and review the CE for approval for
authorization by this nationwide permit. We may include conditions for
authorization as a part of that approval. This is an ongoing process
and the U.S. Coast Guard has recently updated their CEs and requested
approval for authorization under the NWP. RGL 96-1 has already been
issued for Coast Guard CEs and we will soon publish our findings and
determinations in the Federal Register. We will continue to monitor the
CEs approved for authorization under this nationwide permit and make
adjustments through changes in conditions, new approvals, and removal
of previously approved CEs when warranted. General Condition 4
prohibits substantial disruption of movement of aquatic life species
indigenous to the waterbody.
Some commenters called for not renewing Nationwide Permit 23 due to
misuse, violations of 404(e), and illegal delegation to other agencies
of the Corps determination of which projects are subject to Clean Water
Act review.
We believe the Corps current review process of the lead agency's
decision ensures that the CE is not misapplied. The Corps does not
necessarily approve all of an agency's CEs. Only those consistent with
the NWP program are approved. Furthermore, in the recent action on the
Coast Guard CEs, the Corps requires a PCN for some actions with the
potential to result in more than minimal impacts.
One commenter requested that we require a cultural resources
inventory before approving CEs.
Compliance with cultural resource requirements is the
responsibility of the lead Federal agency. CEs are developed in
accordance with NEPA. All other Federal environmental laws and
regulations, including the cultural resource and historic preservation
laws, must still be satisfied by the agency proposing the CE. NWP 23 is
reissued without change.
24. State Administered Section 404 Programs: The Corps proposed no
changes to this NWP and the only commenter providing comments specific
to the permit expressed support for this nationwide permit as written.
NWP 24 is reissued without change.
25. Structural Discharge: Corps proposed clarification that this
NWP may be utilized for general navigation purposes. A few commenters
recommended issuance of this NWP as proposed. One commenter stated that
this NWP should not be reissued because it has not been demonstrated
that the adverse environmental effects are only minimal, and that
individual permits provide greater protection to environmental
resources. We believe the impacts resulting from the portion of these
projects regulated by the Corps are typically very small and localized.
Any project can be further conditioned to ensure that adverse effects
are minimal or mitigated appropriately, if necessary. If it is
determined that any particular project would not qualify for this NWP
because adverse effects are not minimal, the DE can exercise
discretionary authority and instruct the applicant on the procedures to
seek authorization under an IP.
One commenter requested clarification of the significance of
changing the previously worded ``piers and docks'' to ``mooring
cells''. Another commenter stated that ``docks and piers'' should be
specifically included, noting the current authorization does include
such wording.
We recognize that piers and docks are not mentioned in this NWP;
however, they would be covered if their construction methods entailed
discharge of material into tightly sealed forms or cells. We do not
feel it necessary to specifically include piers and docks, because
their construction often requires driving piles, which typically does
not require a Section 404 permit. The structure itself may require a
Section 10 permit if located in navigable waters of the United States.
One commenter stated that this NWP should include well pads for
monitoring, and surveillance wells used for monitoring pollutants and
groundwater parameters of aquifers.
We do not believe it is necessary or appropriate to include such
uses under this NWP, because Nationwide Permit 18, covering Minor
Discharges, would be more suitable.
One commenter noted that this NWP does not propose any limitations.
Several others recommended limitations

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on this NWP, including no more than 20 mooring cells, size thresholds
such as less than 8,000 square feet for pile-supported structures, or
spacing between piles of at least six feet. Two commenters stated that
this NWP should authorize the side-casting of material for placement of
the forms or construction of pile caps. One commenter stated that
mechanized landclearing for access to the project site for the
placement of structural members should be authorized by this NWP. One
commenter recommended that this NWP specifically not authorize river
boat mooring cells for gambling purposes.
We believe that the actual footprint of project impacts typical of
the types discussed in the NWP are limited sufficiently such that
further limitations are not necessary. However, each district may
implement special conditions or regional general conditions on a case-
by-case basis as deemed necessary. We agree that side-casting of
material for construction of pile caps is appropriate provided it is
kept to the minimum necessary, that material is not placed in such a
manner that it is dispersed by currents or other forces, and that
preconstruction contours are maintained. However, we do not believe
that mec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-31645. Public record. Not legal advice.