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Reissuance of Nationwide Permits - U.S. Government Printing Office

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Reissuance of Nationwide Permits - U.S. Government Printing Office Powered By Docstoc
					                                                                                                    Vol. 77                           Tuesday,
                                                                                                    No. 34                            February 21, 2012




                                                                                                    Part III


                                                                                                    Department of Defense
                                                                                                    Department of the Army, Corps of Engineers
                                                                                                    Reissuance of Nationwide Permits; Notice
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                                               10184                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               DEPARTMENT OF DEFENSE                                   stabilization activities, road crossings,             Grandfather Provision for Expiring
                                                                                                       stream and wetland restoration                        NWPs
                                               Department of the Army, Corps of                        activities, residential developments,                   In accordance with 33 CFR part
                                               Engineers                                               mining activities, commercial shellfish               330.6(b), activities authorized by the
                                               RIN 0710–AA71                                           aquaculture activities, and agricultural              current NWPs issued on March 12,
                                                                                                       activities. Some NWP activities may                   2007, that have commenced or are
                                               Reissuance of Nationwide Permits                        proceed without notifying the Corps, as               under contract to commence by March
                                                                                                       long as those activities satisfy the terms            18, 2012, will have until March 18,
                                               AGENCY:    Army Corps of Engineers, DoD.                and conditions of the NWPs. Other                     2013, to complete the activity under the
                                               ACTION:   Final notice.                                 NWP activities cannot proceed until the               terms and conditions of the current
                                                                                                       project proponent has submitted a pre-                NWPs. Nationwide permit 21 activities
                                               SUMMARY:    The U.S. Army Corps of
                                                                                                       construction notification to the Corps,               that were authorized by the 2007 NWP
                                               Engineers (Corps) is reissuing 48 of the
                                                                                                       and for most NWPs the Corps has 45                    21 may be reauthorized without
                                               49 existing nationwide permits (NWPs),
                                                                                                       days to notify the project proponent                  applying the new limits imposed on
                                               general conditions, and definitions,
                                                                                                       whether the activity is authorized by                 NWP 21, provided the permittee
                                               with some modifications. The Corps is
                                                                                                       NWP.                                                  submits a written request for
                                               also issuing two new NWPs, three new
                                               general conditions, and three new                       Background                                            reauthorization to the district engineer
                                               definitions. The effective date for the                                                                       by February 1, 2013, and the district
                                                                                                          In the February 16, 2011, issue of the             engineer determines that the on-going
                                               new and reissued NWPs will be March
                                                                                                       Federal Register (76 FR 9174), the U.S.               surface coal mining activity will result
                                               19, 2012. These NWPs will expire on
                                                                                                       Army Corps of Engineers (Corps)                       in minimal adverse effects on the
                                               March 18, 2017. The NWPs will protect
                                                                                                       published its proposal to reissue 48                  aquatic environment and notifies the
                                               the aquatic environment and the public
                                                                                                       existing nationwide permits (NWPs),                   permittee in writing that the activity is
                                               interest while effectively authorizing
                                                                                                       issue two new NWPs, and not reissue                   authorized under the 2012 NWP 21.
                                               activities that have minimal individual
                                                                                                       one NWP. The Corps also proposed to
                                               and cumulative adverse effects on the                                                                         Clean Water Act Section 401 Water
                                                                                                       reissue its general conditions and add
                                               aquatic environment.                                                                                          Quality Certifications (WQC) and
                                                                                                       two new general conditions.
                                               DATES: The NWPs and general                                                                                   Coastal Zone Management Act (CZMA)
                                                                                                          After evaluating the comments
                                               conditions will become effective on                     received in response to the February 16,              Consistency Determinations
                                               March 19, 2012.                                         2011, proposal, we have made a number                    The NWPs issued today will become
                                               ADDRESSES: U.S. Army Corps of                           of changes to the NWPs, general                       effective on March 19, 2012. This
                                               Engineers, Attn: CECW–CO–R, 441 G                       conditions, and definitions to further                Federal Register notice begins the 60-
                                               Street NW., Washington, DC 20314–                       clarify the permits, general conditions,              day Clean Water Act Section 401 water
                                               1000.                                                   and definitions, facilitate their                     quality certification (WQC) and the 90-
                                               FOR FURTHER INFORMATION CONTACT:  Mr.                   administration, and strengthen                        day Coastal Zone Management Act
                                               David Olson at 202–761–4922 or by                       environmental protection. Examples of                 (CZMA) consistency determination
                                               email at david.b.olson@usace.army.mil                   improved environmental protection                     processes.
                                               or access the U.S. Army Corps of                        include: imposing limits on surface coal                 After the 60-day period, the latest
                                               Engineers Regulatory Home Page at                       mining activities authorized by NWP 21;               version of any written position taken by
                                               http://www.usace.army.mil/CECW/                         modifying NWP 27 to authorize                         a state, Indian tribe, or EPA on its WQC
                                               Pages/cecwo_reg.aspx.                                   additional aquatic resource restoration               for any of the NWPs will be accepted as
                                               SUPPLEMENTARY INFORMATION:                              and enhancement activities such as the                the state’s, Indian tribe’s, or EPA’s final
                                                                                                       rehabilitation and enhancement of tidal               position on those NWPs. If the state,
                                               Executive Summary                                       streams, wetlands, and open waters; and               Indian tribe, or EPA takes no action by
                                                 The U.S. Army Corps of Engineers                      providing flexibility in designing                    April 23, 2012, WQC will be considered
                                               (Corps) issues nationwide permits                       crossings of streams and other                        waived for those NWPs.
                                               (NWPs) to authorize certain activities                  waterbodies so that movements of                         After the 90-day period, the latest
                                               that require Department of the Army                     aquatic species can be maintained after               version of any written position taken by
                                               permits under Section 404 of the Clean                  taking into account the characteristics of            a state on its CZMA consistency
                                               Water Act and/or Section 10 of the                      the stream or waterbody and the                       determination for any of the NWPs will
                                               Rivers and Harbors Act of 1899. The                     surrounding landscape (see general                    be accepted as the state’s final position
                                               purpose of this regulatory action is to                 condition 2, aquatic life movements).                 on those NWPs. If the state takes no
                                               reissue 48 existing NWPs and issue two                  These changes are discussed in the                    action by May 21, 2012, CZMA
                                               new NWPs. In addition, three new                        preamble.                                             concurrence will be presumed for those
                                               general conditions and three new                           The Corps is reissuing 48 existing                 NWPs.
                                               definitions will be issued. The NWPs                    NWPs, issuing two new NWPs,                              While the states, Indian Tribes, and
                                               may be issued for a period of no more                   reissuing 28 existing general conditions,             EPA complete their WQC processes and
                                               than five years. Therefore, the Corps                   and issuing three new general                         the states complete their CZMA
                                               must reissue the NWPs every five years                  conditions. The Corps is also reissuing               consistency determination processes,
                                               to continue to authorize these activities.              all of the NWP definitions, and adding                the use of an NWP to authorize a
                                               These 50 NWPs will go into effect on                    three new definitions. The Corps is also              discharge into waters of the United
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                                               March 19, 2012.                                         splitting one existing definition into two            States is contingent upon obtaining
                                                 The NWPs authorize activities that                    definitions as they relate to single and              individual water quality certification or
                                               have minimal individual and                             complete projects. The effective date for             a case-specific WQC waiver. Likewise,
                                               cumulative adverse effects on the                       these NWPs, general conditions, and                   the use of an NWP to authorize an
                                               aquatic environment. The NWPs                           definitions is March 19, 2012. These                  activity within a state’s coastal zone, or
                                               authorize a variety of activities, such as              NWPs, general conditions, and                         outside a state’s coastal zone that will
                                               aids to navigation, utility lines, bank                 definitions expire on March 18, 2017.                 affect land or water uses or natural


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                            10185

                                               resources of that state’s coastal zone, is                 The NWP Program provides flexibility               likely generate little, if any, public
                                               contingent upon obtaining an individual                 to readily authorize project                          comment if they were evaluated through
                                               CZMA consistency determination, or a                    modifications if the NWP activity                     the standard permit process with a full
                                               case-specific presumption of CZMA                       cannot be constructed in accordance                   public notice. Through the adoption of
                                               concurrence. We are taking this                         with the approved plans, as long as any               Section 404(e) of the Clean Water Act in
                                               approach to reduce the hardships on the                 modifications would still meet the terms              1977, Congress approved the use of
                                               regulated public that would be caused                   and conditions of applicable NWP(s)                   general permits as an important tool to
                                               by a substantial gap in NWP coverage if                 and qualify for NWP authorization. In                 keep the Corps Regulatory Program
                                               we were to wait until the WQC 60-day                    cases where the district engineer has                 manageable from a resources and
                                               period and the CZMA 90-day period                       issued an NWP verification letter, the                manpower perspective, while protecting
                                               ended before these NWPs would                           permittee should contact the district as              the aquatic environment. The Corps first
                                               become effective.                                       soon as he or she finds that the activity             adopted the concept of general permits
                                                                                                       cannot be constructed in accordance                   in its final rule published on July 25,
                                               Discussion of Public Comments                           with the approved plans. The district                 1975 (see 40 FR 31321). The NWP
                                               I. Overview                                             engineer will then determine if                       program also continues to support the
                                                                                                       authorization by NWP is still                         national goal of ‘‘no overall net loss’’ for
                                                  In response to the February 16, 2011,                appropriate. If it is not, then the                   wetlands, and wetlands compensatory
                                               Federal Register notice, we received                    permittee will be instructed on the most              mitigation will be required when
                                               more than 26,600 comment letters, of                    appropriate mechanism for permitting                  appropriate and practicable to offset
                                               which approximately 26,300 were form                    the modified activity.                                losses of wetland area and functions.
                                               letters pertaining to NWP 21. The non-                     We believe the final permits issued                The ‘‘no overall net loss’’ goal applies
                                               form letters we received contained a few                today maintain a proper balance                       only to wetlands, and for other waters
                                               thousand comments on various                            between efficiently authorizing                       of the United States the goal is to avoid
                                               components of the NWPs and NWP                          activities with minimal individual and                and minimize losses of those waters and
                                               Program implementation. We reviewed                     cumulative adverse environmental                      to provide compensatory mitigation to
                                               and fully considered all comments                       effects and protecting the aquatic                    offset those losses if it is appropriate
                                               received in response to the proposed                    environment. The NWPs provide a                       and practicable to do so. Stream
                                               rule.                                                   streamlined authorization process that                mitigation is becoming more
                                                                                                       is consistent with the principles of                  commonplace as the science and
                                               General Comments                                        Executive Order 13563, Improving                      practical applications become further
                                                                                                       Regulation and Regulatory Review.                     developed.
                                                  Many commenters expressed support                       In contrast, many other commenters                    Some commenters stated that the
                                               for the proposed permits. Some                          expressed general opposition to the                   NWPs should require consideration of
                                               commenters stated that the changes are                  proposal, and said that the proposed                  less damaging alternatives or
                                               a step forward in improving consistency                 rule weakens protection for waters and                demonstrate that NWP activities result
                                               in the NWP program. Many commenters                     should be withdrawn. Some                             in minimal adverse environmental
                                               endorsed the fundamentals of the NWP                    commenters said that the proposal                     effects. One commenter said that there
                                               program, stating that the permits could                 threatens to undermine the important                  is not sufficient emphasis on avoidance
                                               have a beneficial impact to conducting                  and statutorily mandated function of the              of impacts to waters of the United
                                               infrastructure and mining projects                      NWPs and the Clean Water Act, and is                  States. Another commenter objected to
                                               important to the country. Some stated                   contrary to Congressional intent. One                 using NWPs to expand existing projects,
                                               that permitting delays and an increase                  commenter expressed opposition to the                 stating that it discourages avoidance and
                                               in individual permits would result                      issuance of the NWPs, stating that they               minimization.
                                               without the NWP program, creating a                     will result in an increase in the number                 Those NWPs that authorize discharges
                                               backlog for the Corps and resource                      of activities that can be permitted and               of dredged or fill material into waters of
                                               agencies, while placing a burden on                     a reduction in the opportunity for                    the United States comply with the
                                               regulated industries. Another                           public review and comment. Many of                    provisions of the 404(b)(1) Guidelines
                                               commenter urged the Corps to increase                   these commenters objected to the goals                that address the issuance of general
                                               flexibility to allow for project                        of ‘‘streamlining’’ or ‘‘improving                    permits (see 40 CFR 230.7). A decision
                                               modifications when needed due to                        regulatory efficiency,’’ and they said                document is prepared for each NWP to
                                               unanticipated challenges encountered                    that the focus of the NWPs should be on               provide information to show that the
                                               during construction. Some commenters                    compliance with the Clean Water Act.                  NWP will authorize only those activities
                                               stated that further streamlining is                     Another commenter was concerned that                  that result in minimal adverse effects on
                                               needed for increased efficiency and                     the proposed NWPs do not support the                  the aquatic environment and other
                                               reducing administrative burden while                    ‘‘no overall net loss’’ goal for wetlands,            public interest review factors.
                                               maintaining a high level of                             and that the Corps analysis predicts that             Supplemental decision documents are
                                               environmental protection. One                           the NWPs will result in a decrease of                 prepared at a regional level to support
                                               commenter said the Corps should                         waters of the United States, including                the decision on whether to add regional
                                               maximize rather than limit use of the                   wetlands.                                             conditions to an NWP or suspend or
                                               NWP program in light of the current                        As discussed below, those NWPs that                revoke the use of that NWP in a specific
                                               economic situation, Federal budget cuts,                authorize discharges of dredged or fill               waterbody, category of waters, or
                                               and presidential efforts to streamline                  material into waters of the United States             geographic area to ensure that only
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                                               regulations. Another commenter was                      comply with the Clean Water Act and                   activities that result in minimal adverse
                                               pleased to see the Corps hold the line                  the environmental criteria provided in                effects on the aquatic environment and
                                               against further restrictions on the NWP                 its implementing regulations, the                     other public interest review factors are
                                               program. Many commenters emphasized                     404(b)(1) Guidelines at 40 CFR part 230.              authorized by the NWP. In response to
                                               that a timely, efficient, and consistent                The NWPs authorize minor activities                   a pre-construction notification or a
                                               permitting system is critical to the                    that result in minimal adverse effects on             request to verify that an activity is
                                               nation’s economy.                                       the aquatic environment that would                    authorized by NWP, a district engineer


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                                               10186                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               may add activity-specific conditions to                 environmental effects. The issuance of                of detail with which to specify what
                                               the NWP authorization or suspend or                     the NWPs is consistent with these                     constitutes activities that are similar in
                                               revoke the NWP authorization if he or                   requirements and therefore complies                   nature.
                                               she determines that the proposed                        with the intent of the Clean Water Act.
                                                                                                                                                             Compliance With the Section 404(b)(1)
                                               activity would result in more than                      As discussed above, national decision
                                                                                                                                                             Guidelines
                                               minimal adverse effects.                                documents and supplemental decision
                                                 Paragraph (a) of general condition 23,                documents are prepared to demonstrate                   Several commenters said that the
                                               mitigation, requires permittees to avoid                that an NWP will authorize only those                 NWPs do not comply with the 404(b)(1)
                                               and minimize adverse effects to waters                  activities that have minimal individual               Guidelines. One commenter said that
                                               of the United States to the maximum                     and cumulative adverse effects on the                 the Corps has no factual basis to
                                               extent practicable on the project site.                 aquatic environment and other public                  conclude that significant degradation of
                                               The use of NWPs to authorize the                        interest review factors. The decision                 waters of the United States has not
                                               expansion of existing projects does not                 documents use available data and other                occurred, which is required to be in
                                               discourage avoidance and minimization                   information to support their                          compliance with the Guidelines. This
                                               because this general condition applies                  conclusions.                                          commenter recommended withdrawing
                                               equally to all NWP authorizations,                         Where appropriate and necessary,                   the NWPs or replacing them with state
                                               including those that authorize                          certain NWPs have acreage, linear foot,               program general permits. One
                                               expansion of existing projects. The                     or cubic yard limits, or combinations of              commenter stated that the NWPs do not
                                               consideration of practicable alternatives               those limits, to ensure that authorized               comply with the 404(b)(1) Guidelines
                                               in accordance with 40 CFR 230.10(a)                     activities result in minimal individual               because they authorize discharges into
                                               does not apply directly to discharges of                and cumulative adverse effects on the                 special aquatic sites.
                                               dredged or fill material into waters of                 aquatic environment. Specifically,                      When we issue the NWPs, we fully
                                               the United States authorized by general                 NWPs have acreage limitations, NWPs                   comply with the requirements of the
                                               permits (see 40 CFR 230.7(b)(1)).                       have linear foot limitations, and NWPs                404(b)(1) Guidelines at 40 CFR 230.7,
                                                                                                       have cubic yard limitations. Many other               which govern the issuance of general
                                               Compliance With Section 404(e) of the                                                                         permits under Section 404 of the Clean
                                                                                                       NWPs have qualitative limitations in the
                                               Clean Water Act                                                                                               Water Act. For each NWP that
                                                                                                       form of specific activities or situations
                                                  Several commenters said that the                     that are not authorized, or for which a               authorizes discharges of dredged or fill
                                               proposed NWPs are contrary to the                       PCN is required to allow the Corps to                 material into waters of the United
                                               Clean Water Act and violate Section                     ensure on a case-by-case basis that the               States, the decision document contains
                                               404(e) of that Act. Many commenters                     adverse effects on the aquatic                        a 404(b)(1) Guidelines analysis. Section
                                               asserted that the NWPs result in more                   environment of the project are truly                  230.7(b) of the 404(b)(1) Guidelines
                                               than minimal adverse effects on the                     minimal. A few NWPs have no explicit                  requires a ‘‘written evaluation of the
                                               aquatic environment, individually and                   limits, but this is limited to those that             potential individual and cumulative
                                               cumulatively. These commenters stated                   authorize activities that provide benefits            impacts of the categories of activities to
                                               that the NWPs do not protect vitally                    to the aquatic environment (e.g., NWP                 be regulated under the general permit.’’
                                               important functions of wetlands and                     27, which authorizes aquatic habitat                  Since the required evaluation must be
                                               streams, and that the proposal does not                 restoration, establishment, and                       completed before the NWP is issued, the
                                               satisfy the Corps legal obligation to limit             enhancement activities, and NWP 41,                   analysis is predictive in nature. The
                                               general permits to activities that cause                which authorizes activities for                       estimates of potential individual and
                                               minimal adverse impacts, individually                   reshaping drainage ditches to improve                 cumulative impacts, as well as the
                                               and cumulatively. They also said the                    water quality), or those for which the                projected compensatory mitigation that
                                               Corps lacks the data to show that the                   nature of the authorized activity                     will be required, are based on the best
                                               effects of the authorized activities are in             inherently ensures that effects will be               available data from the Corps district
                                               fact minimal. Some commenters                           minimal (e.g., NWP 10, which                          offices, including the past use of NWPs.
                                               expressed concern regarding the                         authorizes non-commercial, single boat,               In our decision documents, we also
                                               potential overuse of these permits                      mooring buoys). Division engineers may                used readily available national data on
                                               without the inclusion of acreage, linear                impose regional conditions on the                     the status of wetlands and other aquatic
                                               feet, watershed or regional limitations.                NWPs to add acreage, linear foot, or                  habitats in the United States, and the
                                               Another commenter said that the NWPs                    cubic yard limits, or reduce those limits             foreseeable impacts of the NWPs on
                                               fail to describe similarly covered                      when the NWPs have specified limits in                those waters.
                                               activities in precise terms.                            their terms and conditions, to ensure                   The process for issuing state
                                                  The Corps disagrees with these                       those NWPs authorize only those                       programmatic general permits is similar
                                               comments. The NWPs comply with the                      activities that result in minimal adverse             to the process for issuing NWPs,
                                               Clean Water Act and the environmental                   effects on the aquatic environment.                   including the use of information to
                                               criteria provided in its implementing                      The NWPs comply with the                           support decisions. The 404(b)(1)
                                               regulations, the 404(b)(1) Guidelines at                requirement in Section 404(e) of the                  Guidelines analysis for state
                                               40 CFR part 230. Section 404(e) of the                  Clean Water Act to authorize categories               programmatic general permits is also
                                               Clean Water Act states that the Chief of                of activities that are similar in nature.             predictive. Given those similarities,
                                               Engineers may issue, after publishing a                 Each NWP authorizes a specific category               compliance with the 404(b)(1)
                                               notice and providing an opportunity a                   of activities, which may be broadly                   Guidelines is not different for state
                                               public hearing, general permits on a                    defined for some NWPs to keep the                     programmatic general permits versus
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                                               nationwide basis for any category of                    NWP program manageable. The Act                       NWPs.
                                               activities involving discharges of                      does not require that activities                        Despite the fact that many NWPs
                                               dredged or fill material into waters of                 authorized by an NWP be identical, only               authorize discharges of dredged or fill
                                               the United States, if it is determined                  that they be similar in nature. The                   material into special aquatic sites, they
                                               that the activities in each category are                permits meet this requirement and are                 are still in compliance with the
                                               similar in nature and result in minimal                 consistent with the Corps’ longstanding               404(b)(1) Guidelines. Section 230.7 of
                                               individual and cumulative adverse                       practice regarding the appropriate level              the 404(b)(1) Guidelines does not


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10187

                                               prohibit the use of NWPs to authorize                   natural or human systems to a new or                  Corps Civil Works activities, but not to
                                               discharges of dredged or fill material                  changing environment that exploits                    the Regulatory Program. As stated on
                                               into special aquatic sites. Many NWPs                   beneficial opportunities or moderates                 page 25 of its ‘‘Climate Change
                                               contain additional provisions to protect                negative effects.’’                                   Adaptation Plan and Report 2011’’
                                               special aquatic sites. For example,                        A major cause of climate change is                 (available at: http://
                                               several NWPs specifically require pre-                  emissions of greenhouse gases.                        www.corpsclimate.us/
                                               construction notification for proposed                  Activities authorized by NWPs have                    adaptationpolicy.cfm), the Corps
                                               discharges of dredged or fill material                  little direct, indirect, or cumulative                expects to make larger changes in the
                                               into special aquatic sites (e.g., NWP 13                effects on climate change and the                     next update of the Engineer Circular,
                                               for bank stabilization activities, NWP 14               emission of greenhouse gases. There                   ‘‘and the regulatory program will be
                                               for linear transportation projects, NWP                 may be brief emissions of greenhouse                  added following appropriate
                                               18 for minor discharges). As another                    gases during the construction of                      consultation.’’
                                               example, NWP 19 for minor dredging                      activities authorized by NWP,
                                               activities, does not authorize dredging                 specifically discharges of dredged or fill            Compliance With the Endangered
                                               in coral reefs or dredging activities that              material into waters of the United States             Species Act
                                               cause siltation that degrades coral reefs.              or structures or work in navigable                      One commenter acknowledged the
                                               General condition 22, designated critical               waters of the United States. Any                      Corps 2007 efforts to pursue
                                               resource waters, applies the                            greenhouse gas emissions that occur                   programmatic consultation for the NWP
                                               prohibitions in paragraph (a) and the                   other than as a result of the discharge of            program with the U.S. Fish and Wildlife
                                               notification requirement in paragraph                   dredged or fill materials are outside of              Service and the National Marine
                                               (b) to wetlands (a special aquatic site)                the Corps NEPA scope of analysis                      Fisheries Service to ensure compliance
                                               adjacent to critical resource waters.                   because the Corps does not have the                   with the Endangered Species Act (ESA),
                                                                                                       legal authority to control those                      stating that failure to complete
                                               Compliance With the National                            emissions. The degradation of air
                                               Environmental Policy Act                                                                                      consultation violates the ESA, as well as
                                                                                                       quality caused by burning coal is not the             Section 404(e) of the Clean Water Act.
                                                  Three commenters stated that the                     result of a discharge of dredged or fill              Two commenters stated that the Corps
                                               NWPs do not satisfy the requirements of                 material and therefore is outside the                 has a requirement to complete these
                                               the National Environmental Policy Act                   Corps legal authority. The issuance of a              consultations prior to the issuance of
                                               (NEPA), as they do not adequately                       Corps permit is designed to ensure that               the NWPs.
                                               consider indirect and cumulative effects                any discharges of dredged or fill
                                               on global warming. One commenter said                                                                           We have reinitiated programmatic
                                                                                                       material into waters of the United States
                                               that degradation in air quality from                                                                          Section 7 Endangered Species Act
                                                                                                       associated with such mining comply
                                               burning coal from mining projects must                  with the Clean Water Act. A Corps                     consultation for the NWPs. If this
                                               be addressed in an environmental                        permit does not authorize coal mining                 consultation is not completed prior to
                                               impact statement, and that the Corps                    per se, and therefore the effects of coal             the effective date of these NWPs, district
                                               has to address the implications of                      mining that do not result from a                      engineers will consult, as necessary on
                                               climate change on aquatic ecosystems.                   discharge of dredge or fill material to               a case-by-case basis with the U.S. Fish
                                               Another commenter stated that the                       waters of the United States generally are             and Wildlife Service and National
                                               scientific consensus on the impacts of                  beyond the Corps NEPA scope of                        Marine Fisheries Service in accordance
                                               climate change has to be considered in                  analysis.                                             with general condition 18, endangered
                                               the renewal of the NWPs. One                               The effects of climate change on                   species. Division engineers may also
                                               commenter said the NWPs should take                     aquatic ecosystems are a much broader                 impose regional conditions on any of
                                               into account ongoing federal efforts to                 issue than the effects on the aquatic                 the NWPs to facilitate compliance with
                                               address the effects of climate change                   environment caused by activities                      the requirements of the Endangered
                                               through federal programs. These federal                 authorized by NWPs. The effects of                    Species Act.
                                               programs address mitigation of climate                  climate change on hydrology and                       Compliance With Section 304(d) of the
                                               change (e.g., through reduction of                      extreme events are difficult to project.              National Marine Sanctuaries Act
                                               greenhouse gas emissions) and                           The effects will vary by location and the
                                               adaptation to climate change (e.g., by                  sensitivity of resources to changes in                   One commenter stated that the
                                               adjustments made to reduce                              hydrology and extreme events. The                     proposed NWPs must comply with
                                               vulnerability resulting from changing                   timeframe used to project hydrologic                  Section 304(d) of the National Marine
                                               climate).                                               changes will also affect the evaluation.              Sanctuaries Act (NMSA). Section
                                                  Although the Council on                              For activities with minimal adverse                   304(d)(1))(A) of the NMSA states that
                                               Environmental Quality has made                          effects on the aquatic environment that               ‘‘Federal agency actions internal or
                                               available draft guidance on the                         are eligible for authorization by the                 external to a national marine sanctuary,
                                               consideration of the effects of climate                 NWPs, the Corps believes that any                     including private activities authorized
                                               change and greenhouse gas emissions,                    necessary adaptation to climate change                by licenses, leases, or permits, that are
                                               and sought public comment on that                       is appropriately addressed through land               likely to destroy, cause the loss of, or
                                               draft guidance, they have not issued any                use planning and zoning, which is the                 injure any sanctuary resource are
                                               final guidance specifically on how to                   primary responsibility of state, tribal,              subject to consultation with the
                                               consider, in NEPA documents, the                        and local governments. Activities                     Secretary.’’ The regulations for
                                               indirect and cumulative effects Federal                 authorized by NWPs may be part of                     implementing section 304(d) are found
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                                               agency actions have on climate change.                  state, tribal, or local adaptation efforts to         at 15 CFR 922.187, and those
                                               In the Council on Environmental                         mitigate the effects of climate change.               regulations state that the Federal agency
                                               Quality’s October 2011 Progress Report                     On October 1, 2011, the Corps issued               consultation should be conducted with
                                               of the Interagency Climate Change                       updated guidance on sea level change                  the Director of the marine sanctuary.
                                               Adaptation Task Force entitled ‘‘Federal                considerations for Civil Works Program                The consultation may be conducted
                                               Actions for a Climate Resilient Nation’’                (Engineer Circular 1165–2–211). The                   with Endangered Species Act section 7
                                               adaptation is defined as ‘‘adjustment in                current Engineer Circular applies to                  consultation.


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                                               10188                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                 District engineers that have NOAA-                    Waivers of Certain NWP Limits                         activities so that they do not result in
                                               designated marine sanctuaries within                       We proposed to modify the language                 more than minimal adverse effects on
                                               their geographic area of responsibility                 concerning the use of waivers in NWPs                 the aquatic environment. Division
                                               should consult with the Director of the                 13, 29, 36, 39, 40, 42, and 43 by                     engineers have the authority to impose
                                               marine sanctuary to determine which                     clarifying that a waiver may be granted               regional conditions on NWPs to restrict
                                               NWP activities require activity-specific                only after the district engineer makes a              or prohibit their use in certain waters or
                                               consultation under Section 304(d) of the                written determination concluding that                 other geographic areas. Another
                                               NMSA. Regional conditions should be                     the discharge will result in minimal                  important tool is pre-construction
                                               adopted where necessary to ensure                       adverse effects and sets forth the basis              notification, which provides for district
                                               compliance with the requirements of                     for that determination. We also                       engineers to review proposed NWP
                                               section 304(d).                                         proposed to apply the modified waiver                 activities to ensure that they will result
                                                                                                       language to NWPs 21, 44, and 50, as                   in minimal adverse effects. In response
                                               New Nationwide Permits
                                                                                                                                                             to a pre-construction notification, a
                                                  We received several suggestions for                  well as to the two proposed new NWPs.
                                                                                                                                                             district engineer may add activity-
                                               the establishment of new NWPs for                       Some commenters supported the
                                                                                                                                                             specific conditions to the NWP
                                               various activities. Two commenters                      proposed modifications.
                                                                                                          Many commenters said the proposed                  authorization to further minimize
                                               suggested developing an NWP to                                                                                adverse effects to the aquatic
                                               authorize activities associated with                    changes would allow district engineers
                                                                                                       too much discretion, and there should                 environment. For those NWPs that
                                               linear gas facility infrastructure based                                                                      allow district engineers review pre-
                                               on the Federal Energy Regulatory                        be no waivers of NWP limits. One
                                                                                                                                                             construction notifications and issue
                                               Commission’s (FERC) blanket                             commenter stated there was not a need
                                                                                                                                                             written waivers of certain limits, such as
                                               certification program that would allow                  for waivers because many of the NWPs
                                                                                                                                                             the 300 linear foot limit for the loss of
                                               the industry to undertake routine                       already require pre-construction
                                                                                                                                                             intermittent and ephemeral stream bed,
                                               activities without the need to obtain a                 notification and the changes make the
                                                                                                                                                             the NWP activity must still satisfy the
                                               case-specific authorization from FERC                   NWPs more difficult to obtain. The
                                                                                                                                                             statutory and regulatory requirements
                                               for each project. One commenter                         commenter said the waivers create an
                                                                                                                                                             for general permits. The waiver process
                                               recommended issuing an NWP to                           additional paperwork burden and
                                                                                                                                                             does not make the NWP process more
                                               authorize activities associated with                    provide no environmental benefits.
                                                                                                                                                             difficult. Instead, it provides an
                                               controlling nuisance and exotic plant                   Many commenters objected to the
                                                                                                                                                             important tool for districts to efficiently
                                               species and another NWP to authorize                    proposed waivers, stating that they                   authorize activities with minimal
                                               activities for innovative mitigation                    imply that ephemeral and intermittent                 adverse effects on the aquatic
                                               proposals. One commenter said that an                   streams are considered lower in their                 environment after making a written
                                               NWP should be developed to authorize                    function and value to the aquatic                     determination that the activity satisfies
                                               the beneficial reuse of dredged material,               environment and are provided less                     the NWP requirements.
                                               for up to 10,000 cubic yards of material.               protection than perennial streams.                       We recognize the importance of
                                               Another commenter recommended                           These commenters discussed the                        intermittent and ephemeral streams and
                                               adding an NWP to authorize discharges                   importance of ephemeral and                           the waiver process for certain NWPs
                                               of dredged or fill material to raise dam                intermittent streams to overall                       requires district engineers to make
                                               elevations to increase pool elevations of               watershed integrity and to water quality              activity-specific evaluations of the
                                               public water supply reservoirs to                       and stated there is no scientific                     intermittent or ephemeral streams
                                               increase potable water supplies and                     evidence to support the position that the             proposed to be filled or excavated before
                                               wetlands.                                               use of waivers will result in only                    deciding whether to waive the 300
                                                  We believe that existing NWPs such                   minimal impacts. One commenter said                   linear foot limit. To issue a waiver, the
                                               as NWPs 12, 3, and 39 are sufficient to                 that before a waiver is issued, there                 district engineer must make, and
                                               provide general permit authorization for                should be analysis of cumulative effects              document, a minimal adverse effects
                                               gas utility lines and associated                        to the watershed. Several commenters                  determination, which as discussed
                                               infrastructure. Discharges of dredged or                stated that the use of waivers in states              above, is consistent with the statutory
                                               fill material into waters of the United                 with arid and semi-arid ecosystems does               and regulatory requirements for general
                                               States or work in navigable waters of the               not properly take into account the                    permits. As part of the analysis, the
                                               United States associated with the                       importance of headwater streams in                    district engineer must consider the
                                               removal of nuisance or exotic plant                     these ecosystems and could result in                  individual and cumulative adverse
                                               species may be authorized by NWP 27,                    more than minimal individual and                      effects on the aquatic environment on a
                                               aquatic habitat restoration,                            cumulative effects.                                   watershed basis, or for another
                                               establishment, and enhancement                             The basic requirement for general                  appropriate geographic area, such as an
                                               activities. Innovative mitigation                       permits, including NWPs, is that they                 ecoregion. For those activities in arid
                                               proposals may also be authorized by                     may only authorize activities that result             and semi-arid regions, district engineers
                                               NWP 27, as long as those activities                     in minimal individual and cumulative                  will use local criteria as well as their
                                               result in net increases in aquatic                      adverse effects on the aquatic                        knowledge of arid and semi-arid
                                               resource functions and services and                     environment. Section 404(e) of the                    ecosystems to make decisions on pre-
                                               satisfy the other terms and conditions of               Clean Water Act and the regulations                   construction notifications for proposed
                                               that NWP. We believe that the beneficial                relevant to the issuance of the NWPs                  activities that might be eligible for
                                               reuse of dredged material, especially at                (e.g., 33 CFR part 330 and 40 CFR 230.7)              waivers. The basis for any waiver,
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                                               such large quantities, is more                          do not mandate a single approach to                   including appropriate consideration of
                                               appropriately evaluated through the                     satisfying that basic requirement. The                individual and cumulative effects, will
                                               individual permit process, to more                      terms and conditions of the NWPs,                     be documented in the district engineer’s
                                               thoroughly consider effects on existing                 including acreage, linear foot, and cubic             written determination.
                                               aquatic resource functions already being                yard limits and allowing the use of                      Several commenters noted concern
                                               provided in the waters where the reused                 certain NWPs in specific types of                     with the 45-day pre-construction
                                               dredged material might be placed.                       waters, are intended to limit NWPs                    notification review period to provide a


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                            10189

                                               decision whether to grant or deny the                   criteria that are to be used to make any              there must be a factual basis for the
                                               waiver. One commenter noted the                         minimal adverse effects determination                 waiver (which may entail the use of a
                                               applicant can proceed without                           for the NWPs. Criteria that are to be                 functional assessment methodology,
                                               authorization if the Corps fails to                     used to make minimal adverse effects                  among other possible approaches) and
                                               respond to a waiver request within the                  determinations are provided in                        documenting this does impose an
                                               45 day time limit. Several commenters                   paragraph (1) of Section D, District                  additional obligation on the Corps.
                                               expressed concern with the additional                   Engineer’s Decision. The waivers still                Applicants should provide the district
                                               time and the expense that could be                      provide incentives to minimize impacts                engineer as much factual information as
                                               incurred by the applicant who must                      because the NWP authorization                         possible to support the waiver request
                                               wait for the waiver decision and written                threshold (i.e., activities must result in            and facilitate the district engineer’s
                                               determination.                                          minimal individual and cumulative                     determination.
                                                  We believe that the 45-day pre-                      adverse effects on the aquatic                           Several commenters supported the
                                               construction notification review period                 environment) is lower than the                        proposed changes requiring agency
                                               is sufficient for district engineers to                 authorization threshold for individual                coordination and a written decision.
                                               make their written determinations on                    permits (e.g., the proposed activity is               Several commenters said that all
                                               whether to issue waivers of the                         not contrary to the public interest and,              appropriate state and Federal resource
                                               applicable limits for certain NWPs. The                 if it involves discharges of dredged or               agencies should be provided an
                                               text of the NWPs that allow waivers of                  fill material into waters of the United               opportunity to comment on requests for
                                               certain limits clearly states that the                  States, it complies with the 404(b)(1)                waivers. One commenter stated there is
                                               waivers must be made by the district                    Guidelines). In other words, a waiver                 no need for additional agency
                                               engineer in writing. In addition,                       cannot be granted if the activity does                coordination unless specific resource
                                               paragraph (a)(2) of general condition 31,               not meet the minimal effects threshold,               issues are identified, such as
                                               pre-construction notification, says that                and applicant cannot proceed without                  compliance with the Endangered
                                               if a proposed activity requires a written               the Corps’ written determination.                     Species Act or the National Historic
                                               waiver to exceed specified limits of an                 Applicants who submit waiver requests                 Preservation Act.
                                               NWP, the permittee may not begin that                   run the risk that the waiver will be                     We have modified the proposed
                                               activity until the district engineer issues             denied, and valuable time will be lost in             provision requiring agency coordination
                                               the waiver. The 45-day pre-construction                 obtaining Department of the Army                      for pre-construction notifications
                                               notification review period still applies                authorization. Thus, it is in the                     involving losses of greater than 1,000
                                               to pre-construction notifications that                  applicant’s interest to modify the                    linear feet of intermittent and ephemeral
                                               involve requests to waive specific limits               proposed activity if possible to avoid                stream bed, to require agency
                                               of an NWP, but the project proponent                    exceeding a threshold that requires a                 coordination for all pre-construction
                                               may not proceed with the NWP activity                   waiver, and especially to avoid                       notifications requesting a waiver of the
                                               if a written waiver is needed and the                   submitting waiver requests for projects               300 linear foot limit for filling or
                                               district engineer did not provide a                     that will in fact have more than minimal              excavating intermittent or ephemeral
                                               written waiver by the time the 45-day                   adverse effects. States can issue water               streams (see paragraph (d)(2) of general
                                               review period ends. The Corps will                      quality certifications for NWPs based on              condition 31, pre-construction
                                               make every effort to act on waiver                      the specified acreage, linear foot, or                notification). Under this agency
                                               requests within the 45-day review                       cubic yard limits, and require                        coordination process, district engineers
                                               period. If a prospective permittee is                   individual water quality certifications               will solicit comments from the agencies
                                               concerned that a written waiver will not                for losses of waters of the United States             to assist in making the written minimal
                                               be issued within the 45-day pre-                        that exceed the specified limits and                  adverse effects determination necessary
                                               construction notification review period,                must be waived in writing by district                 for a waiver of the 300 linear foot limit
                                               then he or she has the option of                        engineers. The written waiver                         to take effect. Compliance with the
                                               modifying the proposed activity so that                 determinations prepared by the district               Endangered Species Act and the
                                               it does not exceed any specified limit of               engineer have to be activity-specific,                National Historic Preservation Act is
                                               the applicable NWP and does not                         and explain the factual basis of the                  addressed by general conditions 18 and
                                               require a written waiver.                               waiver.                                               20, respectively.
                                                  Many commenters said that specific                      Several commenters said that the                      One commenter said that the loss of
                                               criteria should be applied to the waiver                additional information required for a                 stream bed should be defined and the
                                               process to ensure proposed activities                   request for a waiver and the requirement              300 linear foot limit should be reduced
                                               result in minimal individual or                         to use of a functional assessment                     to 150 linear feet of loss of stream bed
                                               cumulative adverse effects on the                       method that is available and practicable              for those NWPs. Another commenter
                                               aquatic environment. One commenter                      would impose a significant                            suggested reducing the linear foot limit
                                               stated that the waivers provide little                  documentation obligation on Corps                     for loss of stream bed to 50 linear feet.
                                               incentive to minimize impacts. Another                  staff.                                                One commenter stated that the 300
                                               commenter said that water quality                          The NWPs do not impose additional                  linear foot limit should not apply to
                                               certification cannot be issued for NWPs                 information requirements for requests                 ephemeral streams. One commenter said
                                               that have limits that can be waived by                  for waivers of specific limits of NWPs.               that waivers should be allowed for
                                               district engineers because the state                    In addition, there is no requirement to               losses of perennial streams if the
                                               cannot certify that those activities meet               use functional assessments to make                    adverse effects are determined to be
                                               state water quality standards. One                      decisions on waiver requests. The                     minimal and the perennial stream is
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                                               commenter said that when waivers are                    sentence in paragraph (1) of Section D,               limited in its aquatic function.
                                               issued by district engineers, the district              District Engineer’s Decision, on the use                 The loss of stream bed is defined in
                                               engineer must include a fact-specific                   of functional assessments to make                     ‘‘loss of waters of the United States’’ as
                                               basis to support his or her finding.                    minimal effects determinations, states                the linear feet of stream bed that is filled
                                                  The criteria that are to be applied to               that those methods ‘‘may’’ be used if                 or excavated. We believe the 300 linear
                                               requested waivers of specified limits for               they are available and practicable to use.            foot limit is appropriate to ensure that
                                               certain NWPs are the same general                       However, the Corps does agree that                    losses of stream beds result in minimal


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                                               10190                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               adverse effects on the aquatic            404 of the Clean Water Act and reflect                              Corps district will respond to that
                                               environment. Division engineers may       the Corps and EPA’s flawed broad                                    request and inform the project
                                               add regional conditions to an NWP to      interpretation of what constitutes a                                proponent or landowner of the status of
                                               reduce the linear foot limit to an amount water of the United States, specifically                            that water with respect to Clean Water
                                               less than 300 linear feet. The 300 linear for ephemeral streams. Most                                         Act jurisdiction.
                                               foot limit should not be waived for       commenters said the proposed NWPs
                                               losses of perennial streams because they                                                                      Comments on Administrative
                                                                                         would result in an expansion of Clean
                                               function differently than intermittent                                                                        Requirements
                                                                                         Water Act authority and jurisdiction
                                               and ephemeral streams, and we believe     that would have a negative impact on                                Executive Order 13211
                                               it will generally not be the case that    the nation’s economy by creating
                                               losses of more than 300 linear feet of a                                                                        One commenter stated that these
                                                                                         excessive burdens on developers,
                                               perennial stream would constitute a                                                                           proposed regulations will cause coal
                                                                                         farmers, and Corps staff. Another
                                               minimal adverse effect. We believe it                                                                         mines to cease operations and believe
                                                                                         commenter said the Corps should not
                                               would not be a good use of Corps or                                                                           the proposal is subject to Executive
                                                                                         assert jurisdiction over isolated mining
                                               applicant resources to allow waiver                                                                           Order 13211, Actions Concerning
                                                                                         pits.
                                               requests for perennial streams on the                                                                         Regulations That Significantly Affect
                                                                                            The NWPs do not assert jurisdiction                              Energy Supply, Distribution, or Use.
                                               remote chance that the adverse effects of over waters and wetlands. Rather, the
                                               such an activity would be found to be     NWPs are a form of Department of the                                  Although we have made substantial
                                               minimal. The functions provided by        Army authorization to comply with the                               changes to NWP 21, some surface coal
                                               perennial streams, intermittent streams,  permit requirements of Section 404 of                               mining activities will still be authorized
                                               and ephemeral streams differ, in terms    the Clean Water Act and/or Section 10                               by this NWP. The changes to NWP 21
                                               of ecological processes and duration.     of the Rivers and Harbors Act of 1899.                              will not cause coal mines to cease
                                               Perennial streams provide aquatic         Nationwide permits issued under the                                 operations, because there are other
                                               habitat functions year-round, while       authority of Section 404 of the Clean                               forms of Department of the Army
                                               intermittent streams provide aquatic      Water Act authorize discharges of                                   authorization available if the coal
                                               habitat during the months when water      dredged or fill material into waters of                             mining activity involves discharges of
                                               is flowing in the stream channel, and                                                                         dredged or fill material into waters of
                                                                                         the United States. Nationwide permits
                                               when hyporheic flow occurs during                                                                             the United States. Project proponents
                                                                                         issued under the authority of Section 10
                                               drier months. Ephemeral streams                                                                               may apply for individual permits to
                                                                                         of the Rivers and Harbors Act of 1899
                                               provide aquatic habitat functions only                                                                        obtain Department of the Army
                                                                                         authorize structures or work in
                                               for brief periods, because they have                                                                          authorization for such activities. Any
                                                                                         navigable waters of the United States.
                                               flowing water only during, and briefly                                                                        activity that could have previously been
                                                                                         Determining the geographic jurisdiction
                                               after, precipitation events. Other                                                                            authorized under earlier versions of
                                                                                         under the Clean Water Act (i.e.,
                                               important stream functions, such as                                                                           NWP 21 would still be eligible for
                                                                                         identifying waters and wetlands that are
                                               sediment transport, nutrient cycling,                                                                         authorization under an individual
                                                                                         waters of the United States) is a separate
                                               and energy transport also depend on the                                                                       permit. Thus, while there may be
                                               presence of flowing water and, for some   process than the NWP authorization
                                                                                         process. Likewise, identifying navigable                            additional paperwork burden for mine
                                               of those functions, the presence of                                                                           operators, the Corps does not believe
                                               aquatic organisms inhabiting those        waters of the United States for the
                                                                                         purposes of geographic jurisdiction                                 that the changes in these permits will
                                               waters. The other stream functions are                                                                        have a significant impact on the supply,
                                               present year-round for perennial          under Section 10 of the Rivers and
                                                                                         Harbors Act of 1899 is a different                                  distribution, or use of energy (e.g., coal).
                                               streams, and for much of the year for
                                               intermittent streams. In ephemeral        process than the NWP authorization                                  Executive Order 13563
                                               streams, sediment transport, nutrient     process. These NWPs do not expand
                                                                                         either geographic jurisdiction or                                      Several commenters stated that the
                                               cycling, and energy transport functions                                                                       proposed NWPs are not consistent with
                                               occur during brief periods or are absent. activities-based jurisdiction under the
                                                                                         Clean Water Act. Activity-based                                     EO 13563 for ‘‘Improving Regulation
                                               The functional differences exhibited by                                                                       and Regulatory Review’’ because the
                                               perennial, intermittent, and ephemeral    jurisdiction under the Clean Water Act
                                                                                         is determined by applying the                                       modifications to the NWPs would
                                               streams provide a scientific basis for not                                                                    impose numerous onerous conditions
                                               allowing a waiver for perennial streams.  appropriate regulations from 33 CFR
                                                                                         part 323. These NWPs continue to                                    and limitations on applicants.
                                               District engineers will make written
                                               case-specific determinations on whether   provide a streamlined process for                                      The NWPs continue to provide a
                                               to waive the 300-linear foot limit for    obtaining authorization for activities                              streamlined process for authorizing
                                               losses of intermittent and ephemeral      that require Department of the Army                                 activities that require Department of the
                                               stream bed, based in part on the          permits under either Section 404 of the                             Army permits under Section 404 of the
                                               considerations listed in paragraph (1) of Clean Water Act and/or Section 10 of                                Clean Water Act and/or Section 10 of
                                               Section D, ‘‘District Engineer’s          the Rivers and Harbors Act of 1899.                                 the Rivers and Harbors Act of 1899. The
                                               Decision.’’                               Determining whether isolated mining                                 average processing times for standard
                                                                                         pits are subject to Clean Water Act                                 permit applications in Fiscal Year 2010
                                               Clean Water Act Jurisdiction              jurisdiction is a case-specific inquiry to                          was 221 days, while the average
                                                 Many commenters cited the U.S.          be made by applying the appropriate                                 processing time for NWP pre-
                                               Supreme Court decisions issued in 2001 regulations and guidance. A project                                    construction notifications and voluntary
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                                               and 2006, for Solid Waste Agency of       proponent or landowner may contact                                  requests for NWP verifications was 32
                                               Northern Cook County v. U.S. Army         the Corps district office that has the                              days. The terms and conditions of the
                                               Corps of Engineers and Rapanos v.         responsibility for that region of the                               NWPs are necessary to ensure that the
                                               United States (Rapanos), as well as other country and request a jurisdictional                                NWPs comply with applicable statutes
                                               court decisions, and said that the        determination for an isolated mining pit                            and regulations, including the
                                               proposed NWPs exceed the Corps            or any other area that might be                                     requirement that only activities with
                                               jurisdictional authority under Section    considered a water or wetland. The                                  minimal adverse effects, both


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10191

                                               individually and cumulatively, be                       obtaining an individual water quality                 not required for stream channel
                                               authorized by NWPs.                                     certification or waiver, which is a                   modification as discussed in the
                                                                                                       violation of the terms of the permit.                 proposed rule. This commenter
                                               Water Quality Certification Issues
                                                                                                       Case-specific decisions on appropriate                recommended that paragraph (a) state
                                                  One commenter said that the Corps                    enforcement actions are at the Corps                  that stream channel modification
                                               should provide an opportunity for state                 discretion. The provision for NWP                     immediately adjacent to the structure or
                                               and Tribal water quality certification                  verification is an important tool to be               fill being maintained is authorized
                                               agencies to participate early in the NWP                responsive to users of the NWPs, and to               without pre-construction notification.
                                               reissuance process, to reduce potential                 inform them of their need to work with                One commenter suggested that
                                               conflicts during the water quality                      the water quality certification agency to             paragraph (a) include the removal of
                                               certification process. Another                          comply with the requirements of                       material from within existing structures.
                                               commenter asked for clarification                       Section 401 of the Clean Water Act. The               One commenter indicated that the scope
                                               regarding enforcement of the NWPs, in                   provisional verification serves to inform             of activities considered as stream
                                               cases where a provisional NWP                           the applicant that all other requirements             channel modifications should be
                                               verification is issued, but the permittee               for NWP verification have been satisfied              clarified, because certain stream
                                               proceeds with work without receiving                    and allows the applicant to focus on                  channel modifications such as sediment
                                               the individual water quality                            obtaining the required state                          or debris removal and reestablishment
                                               certification. This commenter asked                     certifications.                                       of the original bridge-stream alignment
                                               whether the Corps or the state would                                                                          are needed to maintain a safe crossing
                                               initiate an enforcement action. One                     Discussion of Comments
                                                                                                                                                             with sufficient hydraulic capacity.
                                               commenter objected to use of                            Nationwide Permits                                    Another commenter indicated that
                                               provisional NWP verifications in cases                                                                        while stream channel modification is
                                               where water quality certification has not                  NWP 1. Aids to Navigation. There
                                                                                                       were no changes proposed for this NWP,                restricted to the minimum necessary,
                                               yet been issued for a particular NWP                                                                          there should be a 300 linear foot impact
                                               activity.                                               and no comments were received. This
                                                                                                       NWP is reissued without change.                       limit. One commenter did not support
                                                  The current NWP reissuance process
                                                                                                          NWP 2. Structures in Artificial                    the proposed modification, stating that
                                               provides sufficient opportunity to
                                                                                                       Canals. There were no changes                         pre-construction notification should be
                                               reduce potential conflicts during the
                                                                                                       proposed for this NWP. One commenter                  required for stream channel excavation
                                               water quality certification process.
                                                                                                       recommended not reissuing this NWP                    near a structure because excavation has
                                               States and Tribes begin their water
                                                                                                       because a state will deny water quality               the potential to uncover unknown
                                               quality certification processes when the
                                                                                                       certification.                                        archeological resources.
                                               proposal to reissue the existing NWPs
                                               and issue new NWPs is published in the                     The potential for a state to deny water               We have changed the text of
                                               Federal Register for public comment.                    quality certification for an NWP is not               paragraphs (a) and (b) to clarify which
                                               Water quality certification agencies are                a sufficient basis for not reissuing an               stream modifications fall under
                                               encouraged to submit comments on the                    NWP. The water quality certification                  paragraph (a) and which fall under
                                               NWP proposal. But it is important to                    process is independent of the decision                paragraph (b). The removal of material
                                               remember that each state and Tribe is                   on whether to issue or reissue an NWP.                from waters within, or immediately
                                               likely to have different water quality                  This NWP is reissued without change.                  adjacent to, the structure or fill are
                                               standards, and the national terms and                      NWP 3. Maintenance. We proposed to                 authorized under paragraph (a) and do
                                               conditions for the NWPs cannot address                  modify this NWP to clarify that stream                not require pre-construction
                                               those regional variations.                              channel excavation immediately                        notification. The removal of material
                                                  After the comments received in                       adjacent to the structure or fill being               from waters that are not immediately
                                               response to the proposal are reviewed,                  maintained is authorized under                        adjacent to the structure or fill, but
                                               the final NWPs are developed. Once the                  paragraph (a) and does not require a                  within the limits in paragraph (b), may
                                               final NWPs are published in the Federal                 PCN. We also proposed to replace the                  be authorized under paragraph (b). This
                                               Register, States and Tribes have another                word ‘‘and’’ with ‘‘and/or’’ in paragraph             NWP authorizes only activities that
                                               opportunity to decide whether to issue                  (b) to indicate that the activity does not            repair or return an activity to previously
                                               or deny water quality certification for                 need to include the placement of new or               existing conditions. We do not believe
                                               the NWPs. States and Tribes will have                   additional riprap to qualify for this                 it is necessary to place additional limits
                                               90 days to make their water quality                     NWP.                                                  on this NWP because the current limits
                                               certification decisions.                                   Several commenters supported the                   are sufficient to ensure minimal effects.
                                                  If water quality certification was                   change to paragraph (a) to allow                      Paragraph (a) only authorizes minor
                                               denied for an NWP, then the permittee                   excavation in a stream channel                        stream channel modifications necessary
                                               must obtain an individual water quality                 immediately adjacent to a structure or                to repair, replace, or rehabilitate the
                                               certification or a waiver, even if the                  fill as part of the maintenance activity,             structure or fill, which may include
                                               Corps issued a provisional NWP                          without requiring pre-construction                    minor deviations to account for changes
                                               verification. The provisional NWP                       notification. Some commenters                         in materials, construction techniques,
                                               verification merely informs the                         specifically supported the ability to do              requirements of other regulatory
                                               prospective permittee that the Corps has                minor excavation within stream                        agencies, or current construction codes
                                               determined that the proposed activity                   channels to install a larger culvert or               or safety standards. Such minor
                                               qualifies for NWP authorization, as long                bridge that would improve fish passage                deviations could be done to improve
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                                               as the permittee receives an individual                 without a pre-construction notification.              conditions to facilitate aquatic species
                                               water quality certification or waiver.                  Two commenters asked which types of                   movements. General conditions 20 and
                                               The prospective permittee should                        stream channel modifications could be                 21 address the protection of historic
                                               provide a copy of the individual water                  authorized under paragraph (a). Another               properties and actions to be taken if
                                               quality certification to the Corps                      commenter said that the proposed                      previously unknown remains or artifacts
                                               district. The Corps has full authority to               modification does not adequately clarify              are discovered during the maintenance
                                               pursue an enforcement action for not                    that a pre-construction notification is               activity.


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                                               10192                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                  Several commenters recommended                       notified, within 12 months of the date                steel sheet piling is used for the
                                               adding the word ‘‘or stabilization’’ after              of the damage, for activities involving               maintenance activity.
                                               ‘‘repair, rehabilitation, replacement’’ in              the repair, rehabilitation, or replacement               Riprap may be necessary to protect
                                               paragraph (a) to clarify that stabilization             of structures or fills destroyed or                   the integrity of these structures. We
                                               activities are included in paragraph (a).               damaged by storms, floods, fire or other              have modified the next to last sentence
                                               Two commenters requested that                           discrete events.                                      of paragraph (b) to clarify that new or
                                               practicability be considered with the                      The repair, rehabilitation, or                     additional riprap may be placed to
                                               ‘‘minimum necessary.’’ One commenter                    replacement of structures or fills                    protect the structure or ensure the safety
                                               requested that the NWP include the                      destroyed or damaged by these types of                of the structure. In response to a pre-
                                               requirements of other regulatory                        events does not require pre-construction              construction notification (which is
                                               agencies as a reason for allowing minor                 notification. This is because restoring a             required for all placement of new or
                                               deviations in a structure’s configuration               structure or fill to its pre-event                    additional riprap under paragraph (b) of
                                               or filled area.                                         configuration will not result in more                 this NWP), best management practices
                                                  We do not believe it would be                        than minimal adverse effects relative to              or other mitigation measures may be
                                               appropriate to include stabilization                    the pre-event status quo. If a project                required by the district engineer to
                                               activities under paragraph (a) since                    proponent wants a waiver of the two-                  minimize adverse effect to the aquatic
                                               some stabilization activities may result                year limit, the district engineer can                 environment.
                                               in more than a minor deviation in the                   issue a waiver if warranted, without                     One commenter said that this NWP
                                               structure’s configuration or filled area.               reviewing a pre-construction                          should not authorize maintenance
                                               District engineers already consider what                notification.                                         dredging and that NWP 19 should be
                                               is practicable when reviewing proposed                     Some commenters expressed                          used instead. This commenter also
                                               NWP 3 activities, and we do not believe                 opposition over the proposed change                   recommended adding a cubic yard limit
                                               it is necessary to provide additional                   from ‘‘and’’ to ‘‘and/or’’ under                      for the amount of dredging that is
                                               clarification. We agree that the                        paragraph (b). They recommended                       authorized. Another commenter
                                               requirements of other regulatory                        retaining the current language because                recommended that the removal of
                                               agencies is an appropriate basis for                    they indicated that making the change                 sediment should be limited to 100 feet
                                               making minor changes in a structure or                  to ‘‘and/or’’ would cause confusion as to             instead of 200 feet. One commenter
                                               filled area during maintenance,                         which provision of this NWP would be                  suggested increasing the linear foot limit
                                               especially if those regulatory                          used to authorize riprap placement. The               to 500 feet. One commenter also
                                               requirements help protect aquatic
                                                                                                       commenters also said that this change                 suggested that the applicant be required
                                               resources.
                                                                                                       would result in the regulation of                     to provide information to ensure that
                                                  Several commenters stated that the
                                               placement of new or additional riprap to                excavation activities that do not result              sediments proposed to be removed are
                                               protect small structures be included in                 in more than incidental fallback.                     not contaminated.
                                               paragraph (a). A commenter requested                    Another commenter was concerned that                     Paragraph (b) may be used to
                                               clarification that the placement of pipe                the change to ‘‘and/or’’ suggested that               authorize the removal of accumulated
                                               liners and concrete repairs to flow lines               the addition of riprap triggered pre-                 sediment and debris from section 10
                                               of pipes are examples of maintenance                    construction notification.                            waters, and the 200 linear foot limit is
                                               activities authorized by this NWP. One                     The use of the term ‘‘and/or’’ means               appropriate to ensure minimal adverse
                                               commenter expressed concern that                        that paragraph (b) authorizes the                     effects. District and division engineers
                                               authorizing the expansion of existing                   removal of accumulated sediments or                   can condition this NWP to reduce the
                                               projects into waters of the United States               debris, the placement of new or                       limit to less than 200 linear feet.
                                               discourages avoidance and                               additional riprap to protect the                      Maintenance dredging for the purposes
                                               minimization of adverse impacts and                     structure, or both activities. This NWP               of navigation may be authorized by
                                               violates the 404(b)(1) Guidelines.                      authorizes the removal of accumulated                 NWP 19 and may not be authorized by
                                               Another commenter indicated that work                   sediment and debris if that activity                  this NWP. The only excavation
                                               that is immediately adjacent to the                     involves a regulated discharge of                     authorized by this NWP is excavation
                                               project is not maintenance and that the                 dredged or fill material. This NWP also               necessary for the maintenance, repair,
                                               work should be limited to the extent of                 authorizes the removal of accumulated                 rehabilitation, or replacement of the
                                               the original project.                                   sediments and debris in the vicinity of               structure, and then only within the
                                                  The placement of riprap to protect a                 existing structures from section 10                   limits established in the permit. It is not
                                               structure or fill is more appropriately                 waters. If a project proponent seeks                  necessary to require contaminant testing
                                               authorized by paragraph (b) of this                     authorization to place new or additional              for the sediments to be removed as a
                                               NWP, after the district engineer reviews                riprap near the structure, then pre-                  general condition of the permit, because
                                               the pre-construction notification. If the               construction notification is required in              for many cases there is reason to believe
                                               installation of pipe liners or concrete                 accordance with paragraph (b) of this                 that no contaminants are present in the
                                               repairs to flow lines are necessary and                 NWP.                                                  material. If there is reason to believe
                                               result only in a minor deviation to the                    One commenter said that the use of                 that contaminants are present, the
                                               structure’s configuration or filled area, it            riprap should be discouraged and only                 district engineer may require
                                               may be authorized under paragraph (a).                  authorized if other options are not                   contaminant testing and/or best
                                               Paragraph (a) only authorizes minor                     possible. Another commenter suggested                 management practices to control the
                                               deviations to the structure or filled area              placing a limit on the amount of riprap               release of contaminants on a case-
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                                               that are necessary to conduct the repair,               that can be placed under paragraph (b).               specific basis.
                                               rehabilitation, or replacement activity,                One commenter stated that the                            One commenter objected to the
                                               and complies with the general condition                 placement of new or additional riprap is              proposed removal of the words ‘‘[w]here
                                               requiring on-site avoidance and                         not maintenance and should not be                     maintenance dredging is proposed’’
                                               minimization.                                           authorized by NWP 3. One commenter                    from the ‘‘Notification’’ paragraph.
                                                  One commenter said that the permit                   recommended requiring mitigation                      Another commenter said that pre-
                                               should require that the Corps be                        techniques, such as weep holes, when                  construction notification should only be


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                         10193

                                               required when maintenance dredging is                   under paragraph (b), if the waters are                constructed to maintain aquatic life
                                               contemplated.                                           ephemeral or intermittent streams.                    movements, and general condition 9
                                                  Pre-construction notification is                     Other commenters said that pre-                       requires that water flows be maintained
                                               required for all activities covered under               construction notification should be                   to the maximum extent practicable. The
                                               paragraph (b). When a permittee                         required for all activities authorized by             appropriate size for stream crossings
                                               submits the pre-construction                            this NWP.                                             will be determined on a case-by-case
                                               notification for activities covered under                  We believe that the pre-construction               basis, to comply with the applicable
                                               paragraph (b), they also must submit                    notification requirements for this NWP                general conditions.
                                               information regarding the original                      are appropriate. Pre-construction                        A commenter recommended an
                                               design capacities and configurations of                 notification is required for those                    addition to the ‘‘Note’’, which
                                               the outfalls, intakes, small                            activities that may have the potential to             references the section 404(f) exemption
                                               impoundments, and canals. The deleted                   cause more than minimal adverse effects               for maintenance. This commenter
                                               phrase is meant to clarify the                          on the aquatic environment. Activities                suggested that the note include
                                               ‘‘Notification’’ provision.                             authorized by paragraph (b) usually                   clarification as to who can use the
                                                  A commenter asked if the term                        involve larger impacts than those                     exemption for maintenance of irrigation
                                               ‘‘upland’’ means ‘‘above the ordinary                   authorized by paragraph (a) and                       and drainage ditches.
                                               high water mark.’’ That commenter also                  therefore warrant pre-construction                       The section 404(f) exemption for
                                               requested clarification as to what                      notification to ensure that those                     maintenance of irrigation ditches and
                                               constitutes ‘‘temporary’’ in terms of how               activities will result in minimal adverse             drainage ditches can be used by anyone
                                               long temporary fills can be kept in                     effects on the aquatic environment.                   that qualifies for the exemption. If a
                                               place. Another commenter asked for a                       One commenter suggested that this                  particular activity does not qualify for
                                               definition of ‘‘minor deviations’’ and                  NWP should require the use of best                    the exemption because of the recapture
                                               two commenters recommended that                         management practices to avoid                         provision in section 404(f)(2) or for any
                                               ‘‘immediately adjacent’’ be defined.                    sediment loading of waters. One                       other reason, NWP 3 may be used to
                                                  There may be wetlands landward of                    commenter suggested that paragraph (c)                authorize the maintenance activity, if it
                                               the ordinary high water mark of a river                 should be conditioned to protect                      meets the terms and conditions of the
                                               or other water of the United States, so                 downstream water quality and prohibit                 NWP.
                                               it would not be appropriate to define                   sediment discharges. Two commenters                      This NWP is reissued with the
                                               ‘‘uplands’’ as suggested in the previous                said that general condition 2 should not              modifications discussed above.
                                               paragraph. Since some waters and                        apply to NWP 3 activities.                               NWP 4. Fish and Wildlife Harvesting,
                                               wetlands are not subject to Clean Water                    General condition 12 requires the use              Enhancement, and Attraction Devices
                                               Act jurisdiction, we have changed the                   of sediment and erosion controls to                   and Activities. There were no changes
                                               text of paragraph (b) to require all                    minimize sediment inputs during                       proposed for this NWP. One commenter
                                               dredged or excavated materials to be                    construction. General condition 2 does                suggested adding fish aggregating
                                               deposited and retained in an area that                  apply to this NWP, to ensure that                     devices to the list of devices and
                                               has no waters of the United States,                     aquatic life movements can continue                   activities authorized by this NWP. Fish
                                               unless otherwise specifically approved                  after the maintenance activity is                     aggregating devices are man-made
                                               by the district engineer under separate                 conducted.                                            objects used to attract ocean-going
                                               authorization. Waters of the United                        One commenter said that Tribes                     pelagic fish. Before these devices,
                                               States will be identified in accordance                 should be notified to avoid impacts to                commercial fishing used purse seining
                                               with applicable laws, regulations, and                  tribal treaty natural resources and                   to target surface-visible aggregations of
                                               guidance, as discussed above, and is not                cultural resources. Two commenters                    birds and dolphins, which were used as
                                               affected by the issuance of these NWPs.                 said that this NWP should be                          a signal of the presence of tuna schools
                                               What constitutes a temporary fill is at                 conditioned to allow fish migration to                below. However, the by-catch of
                                               the discretion of the district engineer.                continue. One of these commenters also                dolphins became a significant issue. The
                                               Determining what is a minor deviation                   stated that these activities should not               demand for dolphin-safe tuna was a
                                               and immediately adjacent is also at the                 restrict water flows or constrict                     driving force for fish aggregating
                                               discretion of the district engineer. The                channels. One commenter said that this                devices. Therefore, we concur with the
                                               Corps believes this is appropriate                      NWP should be conditioned to address                  comment and have added that device to
                                               because it is difficult to identify bright              slope stability to prevent overburden                 this NWP. This NWP is reissued with
                                               line definitions for these terms that are               material from going into the water.                   the modification discussed above.
                                               applicable in all circumstances. If an                  Another commenter recommended that                       NWP 5. Scientific Measurement
                                               applicant is unsure whether a specific                  all stream crossings span the bankfull                Devices. We proposed to modify this
                                               activity qualifies, he or she should                    width and, in cases where the structures              NWP to require the removal of the
                                               consult the appropriate Corps district                  have a bottom, the structure bottom                   device and any associated structures or
                                               office.                                                 shall match stream slope.                             fills at the conclusion of the study. We
                                                  Several commenters said that pre-                       District engineers have conducted                  also proposed to add meteorological
                                               construction notification should not be                 government-to-government consultation                 stations to the list of examples of the
                                               required for activities authorized by                   with Tribes to determine which NWP                    types of devices authorized by this
                                               paragraph (b), to reduce delays. Other                  activities should be subject to project-              NWP, as well as current gages and
                                               commenters requested removal of the                     specific consultation to protect Tribal               biological observation devices.
                                               pre-construction notification                           treaty natural resources and cultural                    One commenter suggested that each of
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                                               requirements for sediment and debris                    resources. General Condition 18                       the listed devices be defined and have
                                               removal, because the work is often                      specifies that no activity or its operation           footprint and height limitations.
                                               conducted immediately after storm                       may impair reserved tribal rights,                    Another commenter said that
                                               events when a timely response is critical               including, but not limited to, reserved               meteorological stations should not be
                                               to public safety. Another commenter                     water rights and treaty fishing and                   authorized by this NWP. One
                                               also requested that no pre-construction                 hunting rights. General condition 2                   commenter supported adding
                                               notification be required for activities                 requires that NWP activities be                       meteorological stations, current gages,


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                                               10194                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               and biological observation devices as                   water of the United States’’ and to                   a separate authorization would be
                                               examples of the types of devices                        replace the 25 cubic yard limit for                   required from that state.
                                               authorized by this NWP. Another                         temporary pads with a 1⁄10-acre limit.                   In waters that have been designated as
                                               commenter stated the Corps should                          Several commenters supported                       Essential Fish Habitat in accordance
                                               define a maximum period required for                    changing the limit from 25 cubic yards                with the Magnuson-Stevens Fishery
                                               a meteorological tower study.                           to 1⁄10-acre. Two commenters expressed                Conservation and Management Act,
                                                  We do not believe it is necessary to                 concern that removing the 25 cubic yard               consultation with the National Marine
                                               provide definitions for each of these                   limit would result in more than minimal               Fisheries Service will be conducted for
                                               devices and add limits. These devices                   cumulative effects to aquatic resources.              proposed activities that may adversely
                                               are usually small in size and since most                One commenter recommended adding                      affect Essential Fish Habitat. That
                                               of them are structures they do not                      wetland delineation sampling activities               consultation will often result in
                                               typically result in a loss of waters of the             to the list of examples of activities                 conservation recommendations that will
                                               United States. This NWP already has a                   authorized by this NWP. Several others                protect habitat for fish foraging and
                                               25 cubic yard limit for weirs and                       recommended adding conditions to                      spawning. General condition 22,
                                               flumes. Division engineers can                          require removal of the temporary fills                designated critical resource waters, will
                                               regionally condition this NWP to                        and re-establishment of pre-construction              also reduce adverse effects to fish
                                               establish additional limits, including                  contours and reseeding of affected areas              foraging and spawning areas caused by
                                               maximum time frames for studies. In                     after completion of work. One                         NWP activities in those critical resource
                                               response to an NWP verification                         commenter requested a definition of                   waters. Division engineers may
                                               request, district engineers may also                    ‘‘temporary pad.’’ One commenter                      regionally condition this NWP to restrict
                                               place limits on these devices and their                 recommended that exploratory                          or prohibit its use in specific waters,
                                               use.                                                    trenching should not be authorized                    including those that provide important
                                                  One commenter suggests the Corps                     below the ordinary high water mark of                 habitat. In response to a pre-
                                               clarify the requirements for the removal                any waters of the United States.                      construction notification, district
                                               of a scientific measurement device, and                                                                       engineers may also exercise
                                                                                                          We are changing the limit of this NWP
                                               suggested that the NWP not require                                                                            discretionary authority if the proposed
                                                                                                       from 25 cubic yards to 1⁄10-acre. We
                                               excavation to remove the entire                                                                               activity would result in more than
                                                                                                       have added ‘‘sample plots or transects
                                               structure. This commenter also said that                                                                      minimal adverse effects on the aquatic
                                                                                                       for wetland delineations’’ as an example
                                               cutting off the structure near the                                                                            environment, including vegetated
                                                                                                       of an activity authorized by this NWP.
                                               substrate of the waterbody and leaving                                                                        shallows and fish spawning and feeding
                                                                                                       General condition 13, removal of
                                               the buried foundation may result in less                                                                      areas. These structures may be designed
                                                                                                       temporary fills, requires temporary fills
                                               environmental damage during removal.                                                                          so that they do not trap debris. General
                                               Another commenter said that where                       to be removed in their entirety and the
                                                                                                                                                             condition 14, proper maintenance,
                                               meteorological towers are used for long-                area revegetated, as appropriate. We do
                                                                                                                                                             requires authorized structures and fills
                                               term data collection and preliminary                    not believe it is necessary to define
                                                                                                                                                             to be properly maintained, which may
                                               testing for wind turbines, those                        ‘‘temporary pad’’ for purposes of this
                                                                                                                                                             include periodic removal of debris from
                                               meteorological towers would be                          NWP, since it is simply a temporary fill
                                                                                                                                                             outfall structures and associated intake
                                               removed during the wind energy facility                 that must be removed upon completion
                                                                                                                                                             structures, to ensure that these
                                               decommissioning process. One                            of the survey activity. We do not agree               structures continue to function
                                               commenter stated that the device should                 that exploratory trenching should be                  properly, do not trap debris, and do not
                                               be removed ‘‘upon completion of the                     prohibited below the ordinary high                    cause more than minimal adverse effects
                                               use of the device to measure and record                 water mark since these activities result              to nearshore aquatic environments.
                                               scientific data.’’                                      in temporary impacts to the aquatic                   Compliance with general condition 1,
                                                  We have modified the provision in                    environment.                                          navigation, will prevent adverse impacts
                                               the NWP to require the removal of the                      This NWP is reissued with the                      to navigation. Permittees are responsible
                                               device when it will no longer be used                   modification discussed above.                         for obtaining any other Federal, state or
                                               to measure and record scientific data.                     NWP 7. Outfall Structures and                      local permits that may be required.
                                               Meteorological towers used in wind                      Associated Intake Structures. We did                     The NWP is reissued without change.
                                               energy generation facility preliminary                  not propose any changes to NWP. One                      NWP 8. Oil and Gas Structures on the
                                               testing and operations could be left in                 commenter objected to the reissuance of               Outer Continental Shelf. We proposed
                                               place until the facility is                             this NWP, stating that these activities               to modify this NWP to update the name
                                               decommissioned. We have also changed                    adversely affect aquatic vegetation or                of the former Minerals Management
                                               the text to state that structures or fills              areas designated as critical habitat for              Service to the Bureau of Ocean Energy
                                               must be removed to the maximum                          fish foraging and spawning, through                   Management Regulation, and
                                               extent practicable, which would allow                   increases in turbidity, discharges of                 Enforcement (BOEMRE).
                                               the foundation to remain if removing                    nutrients and contaminants, alteration                   One commenter expressed support for
                                               the foundation would cause more                         of near-shore areas, and scouring                     the proposed modification. One
                                               adverse effects to the waters or wetlands               vegetation within the plume. Another                  commenter recommended that no oil
                                               than leaving the foundation in place.                   commenter recommended that outfall                    and gas structures or activities be
                                               We also added the word ‘‘foundation’’                   structures not be placed in wetlands or               authorized through the nationwide
                                               to the examples of structures or fills that             constructed in such a manner that                     permit process.
                                               may be associated with a scientific                     would create shoreline pockets capable                   After the proposal to reissue this NWP
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                                               measurement device.                                     of trapping debris. One commenter                     was published, the Bureau of Ocean
                                                  This NWP is reissued with the                        recommended conditioning this NWP to                  Energy Management (BOEM) became
                                               modifications discussed above.                          ensure that the outfall structure not                 the agency responsible for issuing leases
                                                  NWP 6. Survey Activities. We                         extend into the receiving water and                   for oil and gas structures on the outer
                                               proposed to modify this NWP to specify                  impair navigation. One commenter                      continental shelf. We have modified the
                                               how exploratory trenches are backfilled                 suggested that for activities proposed to             text of NWP 8 to reflect this change.
                                               by stating the work ‘‘must not drain a                  occur on state-owned submerged lands,                 This NWP only authorizes structures


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10195

                                               erected within areas of the outer                       authorized under this NWP be removed                  linear project.’’ Although the vast
                                               continental shelf leased by the Bureau                  immediately after use ceases, instead of              majority of utility lines are linear
                                               of Ocean Energy Management. The                         the 30 days specified in the NWP.                     projects where the crossings are at
                                               general environmental concerns are                        The Corps believes that the current                 separate and distant locations, and thus
                                               addressed in the required NEPA                          requirements for the removal of                       considered separate single and complete
                                               documentation prepared by BOEM prior                    temporary structures are sufficient.                  projects, there may be circumstances
                                               to issuing a lease. The Corps role is                   Where necessary, shorter time periods                 where the separate crossings of a
                                               limited to reviewing impacts on                         for removal can be imposed through                    waterbody are too close together to be
                                               navigation and national security, as                    regional conditioning or through special              considered separate single and complete
                                               stated in 33 CFR part 322.5(f).                         conditions provided in activity-specific              projects, and one NWP authorization
                                                  This NWP is reissued as proposed.                    NWP verifications.                                    would be evaluated for those closely-
                                                  NWP 9. Structures in Fleeting and                      The NWP is reissued without change.                 spaced crossings. Therefore, we have
                                               Anchorage Areas. There were no                            NWP 12. Utility Line Activities. We                 retained the more generic term ‘‘single
                                               changes proposed for this NWP, and no                   proposed to modify this NWP to clarify                and complete project’’ in the text of this
                                               comments were received. This NWP is                     how to calculate the loss of waters of the            NWP. Other supporting components of
                                               reissued without change.                                United States for a single and complete               a utility line, such as substations, may
                                                  NWP 10. Mooring Buoys. There were                    project that involves an access road.                 not be considered linear projects in
                                               no changes proposed for this NWP. One                   This proposed change was intended as                  some circumstances. District engineers
                                               commenter stated a notice to Tribes                     a clarification of long-standing practice,            may exercise discretionary authority
                                               needs to be provided to avoid adverse                   not a substantive revision.                           and require compensatory mitigation for
                                               effects to Tribal treaty fishing access.                  Several commenters supported the                    utility line activities that require pre-
                                               One commenter recommends                                proposed change to this NWP. Another                  construction notification and result in
                                               prohibiting the use of this NWP in                      commenter stated the proposed                         the loss of aquatic resources.
                                               ‘‘downgraded shellfish harvest areas.’’                 clarification would severely restrict the                One commenter stated the Corps
                                               Another commenter said that the permit                  use of NWP 12, because it changes the                 should clarify that the only relevant
                                               should be conditioned to require                        definition of single and complete                     activity for purposes of NWP 12 is a
                                               permittee’s to provide information on                   project. One commenter requested                      discharge of dredged or fill material into
                                               the location of the mooring buoy,                       further clarification of the intent and               waters of the United States. One
                                               including a site plan drawn to scale that               applicability of the term ‘‘single and                commenter said that no discharges
                                               shows the distance of the buoy from the                 complete’’ and suggested we replace it                should be authorized in waters below
                                               shore, mark the Corps permit number on                  with ‘‘single and complete linear                     the ordinary high water mark or in areas
                                               the buoy, and a statement that the buoy                 projects’’ wherever the former phrase is              that provide fish habitat functions. This
                                               satisfies U.S. Coast Guard requirements.                found in NWP 12 since the NWP applies                 commenter also said that utility lines
                                               One commenter suggested adding a                        to linear projects and their associated               should be buried at least six feet below
                                               limit on the number of buoys installed                  facilities and activities. Two                        the authorized federal channel depth.
                                               per acre, based on the number and size                  commenters requested confirmation that                One commenter stated that mechanized
                                               of the moored vessels.                                  the calculation of impacts for purposes               land clearing of forested wetlands for
                                                  Division engineers can regionally                    of satisfying the NWP 12 threshold is                 installation of utility lines should not be
                                               condition this NWP to prohibit its use                  done separately for each crossing.                    authorized by NWP 12.
                                               in areas where mooring buoys may                        Another commenter objected to the                        The activities authorized by this NWP
                                               impact access to Tribal treating fishing                definition of ‘‘single and complete                   are not limited to discharges of dredged
                                               areas. General condition 18 states that                 project’’ at 33 CFR 330.2(i) and the NWP              or fill material. This NWP also
                                               NWP activities cannot impair reserved                   definitions section and stated mitigation             authorizes structures or work in
                                               tribal rights. Division engineers can                   should be required for utility lines that             navigable waters of the United States
                                               impose regional conditions to restrict or               result in the loss of greater than 1⁄2-acre.          that require authorization under Section
                                               prohibit its use in shellfish harvesting                  This modification of the NWP does                   10 of the Rivers and Harbors Act of
                                               areas. We do not agree that pre-                        not change the definition of single and               1899. We do not agree that discharges
                                               construction notification for the                       complete project and does not affect its              should be prohibited in open waters,
                                               activities authorized by this NWP is                    implementation, except to clarify that                below the ordinary high water mark.
                                               necessary, to require prospective                       only losses of waters of the United                   Such activities often result in minimal
                                               permittees to submit detailed                           States associated with a single and                   adverse effects on the aquatic
                                               information on the location of the                      complete project would be considered                  environment and qualify for general
                                               proposed mooring buoy, a detailed site                  when determining whether the acreage                  permit authorization. Division engineers
                                               plan, and a statement that it complies                  limit or pre-construction notification                can restrict or prohibit use of this NWP
                                               with U.S. Coast Guard requirements. All                 threshold is exceeded. However, it is                 in certain waters, through the approval
                                               applicable Coast Guard regulations must                 correct that the Corps long-standing                  of regional conditions. The appropriate
                                               be complied with independent of the                     practice (which we are not changing)                  depth a utility line should be buried
                                               conditions in this NWP. We believe that                 has been to generally calculate impacts               below a federal channel should be
                                               it is not necessary to limit this NWP, at               for purposes of satisfying the 1⁄2-acre               determined on a case-by-case basis.
                                               the national level, to install a particular             threshold separately for each separate                Mechanized landclearing of a forested
                                               number of mooring buoys per acre.                       and distant crossing, and we have                     wetland in a utility line right-of-way
                                               Division engineers may also regionally                  clarified this in the definitions section             may only result in a conversion of
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                                               condition this NWP to impose such                       by adding separate definitions that                   wetland type, and not result in
                                               restrictions.                                           explain how single and complete                       permanent loss of waters of the United
                                                  This NWP is reissued without change.                 projects are determined for linear and                States. District engineers may require
                                                  NWP 11. Temporary Recreational                       non-linear projects. We do not agree that             compensatory mitigation to offset
                                               Structures. There were no changes                       in the text of this NWP the term ‘‘single             permanent losses of wetland functions
                                               proposed for this NWP. One commenter                    and complete project’’ should be                      when such mechanized landclearing
                                               recommended requiring that structures                   replaced with ‘‘single and complete                   occurs in forested wetlands.


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                                               10196                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                  One commenter stated that                               We have added Note 4 to this NWP,                  mitigation. It is not practicable to
                                               authorizing the loss of 1⁄2-acre of waters              which states that a copy of the pre-                  require side cast material to be put back
                                               of the United States for each crossing                  construction notification will be                     into the original trench or pit within 24
                                               results in more than minimal adverse                    provided to the Department of Defense                 hours, and we have retained the current
                                               environmental effects. Another                          Siting Clearinghouse if the proposed                  language concerning temporary side
                                               commenter said that the 1⁄2-acre limit                  activity involves an overhead utility line            casting. It is the district engineer’s
                                               should apply to the entire utility line                 constructed in waters of the United                   discretion on whether to extend the
                                               project, because the cumulative effects                 States. This coordination process will                period of temporary side casting. That
                                               of the utility line must be considered.                 not interfere or delay the district                   discretion would be based on the site-
                                               One commenter stated that this NWP                      engineer’s decision on the pre-                       specific environmental conditions, the
                                               should also limit stream impacts to 300                 construction notification, which must                 activity, practicability considerations,
                                               linear feet. Several commenters asked                   be made within the timeframes                         and other factors. District engineers can
                                               whether the conversion of a forested                    specified in the NWP general                          restrict or prohibit side casting in areas
                                               wetland to a scrub-shrub wetland                        conditions. The coordination process                  where sediment contamination may be
                                               counts toward the 1⁄2-acre limit.                       will consist of districts sending the                 a concern. Excavated materials are
                                                  The 1⁄2-acre limit applies to each                   Department of Defense Siting                          generally not placed in flowing waters,
                                               crossing that is considered to be a                     Clearinghouse copies of pre-                          and should be retained in areas outside
                                               separate single and complete project,                   construction notifications and NWP                    of flowing waters with proper sediment
                                               because they are sited at distant                       verifications, and Clearinghouse staff                and erosion controls.
                                               locations from other crossings that                     will work with project proponents to                     One commenter objected to
                                               constitute the linear project. Each                     address effects to military operations.               authorizing the expansion of utility line
                                               separate and distant crossing should be                    One commenter stated that the                      substations, stating that those activities
                                               evaluated to determine if it meets the                  definition of a utility line in the NWP               should require individual permits and a
                                               terms and conditions of the NWP, and                    is too expansive and should not include               finding of compliance with the Clean
                                               cumulative effects of the overall utility               liquescent or slurry substances. This                 Water Act Section 404(b)(1) Guidelines
                                               line should be evaluated to determine if                commenter asked if utility lines could                and public interest review.
                                               the adverse cumulative effects on the                   also be used to transport waste                          The expansion of utility line
                                               aquatic environment are more than                       products. One commenter stated that                   substations does not generally warrant a
                                               minimal and therefore do not qualify for                terms and conditions of the NWP                       full public interest review and activity-
                                               NWP authorization. Separate utility line                should require projects to use existing               specific Section 404(b)(1) Guidelines
                                               crossings are usually on different water                trenches or cables whenever possible,                 analysis since it is an expansion of an
                                               bodies, and may also be in widely                       and require that sidecast material be put             existing facility. In response to a pre-
                                               separated watersheds. Such factors                      back in place within 24 hours. One                    construction notification, the district
                                               should be considered when assessing                     commenter requested that temporary fill               engineer will review the proposed
                                               cumulative impacts. The ‘‘Definitions’’                 be defined and that compensatory                      expansion of a substation and exercise
                                               section provides further clarification on               mitigation should be required for                     discretionary authority if it would result
                                               single and complete projects. The                       temporary fills left in place for two                 in more than minimal individual and
                                               conversion of a forested wetland to a                   years. One commenter said that                        cumulative adverse effects on the
                                               scrub shrub wetland does not constitute                 enforcing the time periods for temporary              aquatic environment.
                                               a permanent loss of waters of the United                side casting is too difficult. One                       Two commenters stated the
                                               States, and thus does not count towards                 commenter requested more detail                       construction of temporary access roads
                                               the acreage limit, even though it may                   regarding the circumstances under                     will require a submerged lands
                                               result in the permanent loss of certain                 which a district engineer would extend                authorization and would require a
                                               functions, which may require                            the period of temporary side casting up               submerged land lease for long-term use.
                                               compensatory mitigation.                                to a total of 180 days. One commenter                    The use of NWP 12 does not obviate
                                                  One commenter said that some utility                 stated the side casting in areas with                 the need for the project proponent to
                                               lines and associated renewable energy                   known or probable sediment                            obtain any other federal, state, or local
                                               projects may have unintended negative                   contamination should be prohibited.                   permits that may be required, including
                                               impacts on the Department of Defense                    One commenter stated the placement of                 permits from states that hold title to
                                               mission. For example, high voltage                      excavated materials into any waterway                 submerged lands.
                                               transmission lines could potentially                    should be prohibited.                                    One commenter said that this NWP
                                               interfere with long-range radar                            Water or sewer lines are generally                 should have fewer pre-construction
                                               surveillance, homeland defense, testing,                recognized to be utility lines, and are               notification thresholds to expedite
                                               and training missions. This commenter                   used to transport liquid or slurry                    pipeline safety repairs and
                                               requested that pre-construction                         substances. They may also be used to                  infrastructure projects. One commenter
                                               notifications for NWP 12 activities                     transport waste products, such as                     supported retaining the 1⁄10-acre
                                               involving the construction of overhead                  sewage or industrial byproducts. We do                threshold pre-construction notification.
                                               utility lines in waters of the United                   not agree that existing trenches or cable                We believe all of the current pre-
                                               States be coordinated with the                          should be a requirement of this NWP,                  construction notification thresholds are
                                               Department of Defense, by sending a                     since many new utility lines                          necessary because of the variety of
                                               copy of the pre-construction notification               constructed in waters of the United                   utility line activities authorized by NWP
                                               to the Department of Defense Siting                     States result in minimal adverse effects              12 (i.e., utility line construction,
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                                               Clearinghouse. Department of Defense                    on the aquatic environment. However,                  maintenance, repair, and removal, the
                                               Siting Clearinghouse staff will review                  project sponsors should consider the                  construction, maintenance, or
                                               the pre-construction notification and                   use of existing trenches and cables                   expansion of utility line substations, the
                                               contact the project proponent if they                   where practicable as one way of                       construction or maintenance of
                                               identify potential negative impacts to                  avoiding or minimizing adverse impacts                foundations for overhead transmission
                                               Department of Defense operations,                       to the aquatic environment, which is                  lines, and the construction of access
                                               testing, and training missions.                         required by general condition 23,                     roads) and to allow district engineers


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10197

                                               the opportunity to review those                         facilities, but two of the terms and                  minimal individual and cumulative
                                               activities to determine whether they                    conditions may be problematic. The first              adverse effects on the aquatic
                                               will result in minimal adverse effects on               is the prohibition against side casting               environment. NEPA requires
                                               the aquatic environment. Pipeline                       when sediments would be dispersed by                  consideration of all environmental
                                               maintenance may be authorized by                        currents or other forces. The second is               impacts, not only those to aquatic
                                               NWP 3 or NWP 12, and use of NWP 3                       the 1⁄2-acre limit, which may prohibit                resources, so there may well be
                                               would not usually trigger a pre-                        use of this NWP to authorize the                      situations where aquatic impacts are
                                               construction notification requirement.                  installation of cables that transfer the              minimal even though environmental
                                               Many pipeline maintenance activities                    energy generated by wind turbines.                    impacts more generally are not. These
                                               may also be authorized by NWP 12,                          The transmission cable that runs from              other environmental impacts would be
                                               without pre-construction notification.                  an offshore wind energy generation                    addressed by the lead agency preparing
                                               The 1⁄10-acre pre-construction                          facility to a land-based facility or                  the environmental impact statement.
                                               notification threshold remains in this                  distribution system may be constructed                The district engineer will exercise
                                               NWP.                                                    so that the trench for the cable is                   discretionary authority to require an
                                                  One commenter recommended that                       backfilled immediately after the cable is             individual permit for any utility line
                                               this NWP require the use of specific                    laid into the trench. That immediate                  activity that he or she determines does
                                               equipment such as low ground pressure                   backfilling would minimize dispersion                 not meet the terms and conditions of
                                               equipment and wide tires to minimize                    by currents or other forces in those                  NWP 12.
                                               adverse effects to wetlands. Another                    waters. The placing of a power                           One commenter suggested modifying
                                               commenter said that this NWP should                     transmission cable on the sea bed is                  Note 1 to limit submission of NWP 12
                                               be conditioned to require the use of best               considered a structure under our                      pre-construction notifications and
                                               management practices to reduce                          regulations for implementing Section 10               verifications to the National Oceanic
                                               sediment loads into waters. One                         of the Rivers and Harbors Act of 1899                 and Atmospheric Administration’s
                                               commenter stated that this NWP does                     (see 33 CFR 322.2(b)), and not a loss of              National Ocean Service (NOS), since
                                               not require sufficient avoidance and                    waters of the United States subject to                NOS only produces charts for waters in
                                               minimization of waters of the United                    the 1⁄2-acre limit in NWP 12.                         the coastal United States, Great Lakes,
                                               States. One commenter suggested                            One commenter recommended                          and United States territories.
                                               requiring the installation of barriers next             requiring coordination with Tribes to                    We have modified Note 1 to require
                                               to utility line trenches to prevent                     avoid impacts to Tribal treaty natural                district engineers to send copies of NWP
                                               amphibians and reptiles from falling                    resources and cultural resources.                     12 pre-construction notifications and
                                               into the trench and to reduce sediment                  Another commenter said that                           verifications to NOS in those regions of
                                               transport into waters of the United                     coordination with State Historic                      the country.
                                               States during precipitation events. One                 Preservation Officers should be required                 This NWP is reissued with the
                                               commenter said that pipes installed                     to protect historic properties.                       modifications discussed above.
                                               over rivers and streams should have                        Division engineers can regionally                     NWP 13. Bank Stabilization. We
                                               shut-off valves to minimize the potential               condition this NWP to require                         proposed modifying this NWP by
                                               for discharges to occur if the pipe is                  coordination with Tribes, to ensure that              removing the waiver provision in
                                               breached.                                               this NWP does not adversely affect                    paragraph (c) that allowed district
                                                  The use of equipment that minimizes                  Tribal treaty natural resources and                   engineers to authorize bank stabilization
                                               adverse effects to waters of the United                 cultural resources. General condition                 fills that exceeded one cubic yard per
                                               States is addressed by general condition                20, historic properties, addresses                    running foot below the ordinary high
                                               11, equipment, which requires                           compliance with the National Historic                 water mark or high tide line to
                                               permittees to take measures to minimize                 Preservation Act, which requires                      encourage the use of bioengineered
                                               soil disturbance, such as placing heavy                 consultation for activities that have the             techniques for bank stabilization. To
                                               equipment on mats when working in                       potential to cause effects to historic                conform with the proposed change to in
                                               wetlands, mudflats, or other waters.                    properties, including tribal resources                paragraph (c), we proposed to remove
                                               Division or district engineers may                      that meet the definition of ‘‘historic                the third pre-construction notification
                                               condition this NWP, either through the                  property.’’ General condition 17, tribal              threshold for bank stabilization fills that
                                               regional conditioning process or                        rights, requires that no NWP activity or              exceeded one cubic yard per running
                                               through activity-specific conditions                    its operation may impair reserved treaty              foot, since these fills would no longer be
                                               added to an NWP 12 authorization, to                    rights, such as reserved water rights and             allowed. We also proposed changing
                                               require the use of best management                      treaty fishing and hunting rights.                    this NWP to authorize temporary
                                               practices. General condition 23,                           One commenter requested                            structures and fills necessary for the
                                               mitigation, requires permittees to design               clarification that individual permits are             construction of bank stabilization
                                               and construct their activities to avoid                 not automatically required for NWP 12                 activities.
                                               and minimize adverse effects to waters                  activities when a Corps district                         Many commenters recommended that
                                               of the United States. A requirement to                  participates as a cooperating agency for              this NWP not be reissued, and stated
                                               install barriers next to utility line                   an environmental impact statement.                    that all bank stabilization should be
                                               trenches, or the use of shut-off valves in                 Even though an environmental impact                evaluated under individual permit
                                               pipes constructed over waters, is more                  statement may be prepared for a                       procedures. One commenter asserted
                                               appropriately addressed through the                     particular utility line, the National                 that bank stabilization activities should
                                               regional conditioning process or                        Environmental Policy Act process does                 be authorized with NWP 3 in man-made
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                                               through activity-specific conditions                    not prohibit the Corps from using NWP                 ditches and canals and NWP 13 in
                                               added to an NWP 12 authorization                        12 to authorize the construction,                     natural waterways. Two commenters
                                               during the review of a pre-construction                 maintenance, repair, and removal of                   said this NWP should not authorize new
                                               notification or NWP verification request.               utility lines and associated facilities in            bank stabilization activities. Some
                                                  One commenter stated that this NWP                   waters of the United States, as long as               commenters recommended modifying
                                               could streamline the authorization of                   the activity complies with all applicable             this NWP so that it would not authorize
                                               offshore wind energy generation                         terms and conditions and results in                   new vertical bulkheads and seawalls.


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                                               10198                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               One commenter stated that this NWP                      to reissue this NWP. These commenters                 seawalls to a maximum length of 200
                                               does not result in minimal individual                   also stated that the structures and fills             feet. Another commenter recommended
                                               and cumulative adverse effects on the                   authorized by NWP 13 exacerbate                       a 300 linear foot maximum project
                                               aquatic environment because these                       erosion in areas where sea level rise will            length for shoreline protection on
                                               activities accelerate coastal erosion and               occur.                                                coastal areas or lakes. One commenter
                                               retreat. Additional commenters said that                   Coastal and riparian areas are                     suggested a 300 linear foot maximum
                                               these activities result in more than                    dynamic landscapes. They are                          length for bioengineering projects and a
                                               minimal individual and cumulative                       constantly changing as a result of                    150 foot maximum length for all other
                                               effects. Some of these commenters said                  erosional and depositional processes.                 bank stabilization projects. Two
                                               that this NWP has more than minimal                     Landowners seek Department of the                     commenters requested clarification
                                               adverse effects on low-order ephemeral                  Army authorization for bank                           regarding project length in paragraph (b)
                                               and intermittent streams. One                           stabilization activities to protect their             as it relates to activities that stabilize
                                               commenter said that this NWP should                     property and provide safety. The                      both banks (left and right) of a stream.
                                               not be applicable to both riverine and                  purpose of NWP 13 activities is to                    Many commenters supported the
                                               lacustrine systems and recommended                      protect land on which residences,                     district engineer waiver for the 500
                                               that separate NWPs be developed that                    commercial buildings, infrastructure,                 linear foot limit for any projects.
                                               would address the different erosional                   and other features are located. The                      The limits in this NWP are sufficient
                                               processes in those systems. Several                     Corps regulations recognize that a                    to ensure that the NWP authorizes only
                                               commenters stated that this NWP                         riparian landowner has a right to protect             those activities that have minimal
                                               should not be reissued because of                       his or her property from erosion (see 33              adverse effects on the aquatic
                                               adverse effects to coastal environments,                CFR 320.4(g)(3)). When a district                     environment, although division
                                               as well as sea turtles and other                        engineer evaluates a permit application               engineers may regionally condition the
                                               endangered species and their habitats.                  for bank stabilization activities,                    NWP to reduce those limits to account
                                               Another commenter recommended that                      including pre-construction notifications              for local environmental conditions and
                                               bank stabilization only be permitted by                 for NWP 13 activities, he or she                      the ecological functions and services
                                               this NWP if it is part of a habitat                     considers the current environmental                   provided by waters of the United States
                                               improvement project or has other net                    conditions at the site of the proposed                in those areas. For streams, the linear
                                               improvements in aquatic function.                       activity, as well as the reasonably                   foot limit in paragraph (b) applies to a
                                                  The terms and conditions for this                    foreseeable direct, indirect, and                     single and complete project for the bank
                                               NWP are appropriate for limiting bank                   cumulative effects that might be caused               stabilization activity measured along the
                                               stabilization activities so that they have              by the proposed activity. At the present              length of the stream segment, which
                                               minimal individual and cumulative                       time, there is a considerable amount of               may involve discharging dredged or fill
                                               effects on the aquatic environment,                     uncertainty surrounding climate change,               material along either one or both stream
                                               while allowing landowners and other                     and any associated sea level rise that                banks. We have retained the ability for
                                               entities to protect their property and                  may occur as a result of climate change.              district engineers to waive the 500
                                               safety. NWP 3 only authorizes minor                     To the extent there is reliable                       linear foot limit.
                                               amounts of rip rap associated with                      information about projected sea level                    One commenter requested a definition
                                               maintenance activities. It is more                      rise during the reasonably foreseeable                for bank stabilization. Many
                                               appropriate to authorize bank                           future in the vicinity of a proposed                  commenters asked for a definition of
                                               stabilization activities in man-made                    activity, the district engineer will take             bioengineering. One commenter said
                                               waterways through NWP 13. In many                       that information into account when                    that bioengineering techniques should
                                               coastal waters and rivers it is necessary               determining whether a proposed NWP                    include living plant material and soil as
                                               to utilize hard bank protection                         13 activity will have minimal individual              the primary structural components to
                                               structures, because wave energy and                     and cumulative adverse effects on the                 reinforce soil and to stabilize slopes.
                                               currents are too strong for                             aquatic environment. We do not agree                  One commenter recommended requiring
                                               bioengineering or other techniques to                   that the structures and fills authorized              native vegetation in bioengineering
                                               successfully prevent or reduce erosion.                 by NWP 13 will accelerate erosion in                  projects where vegetation is the primary
                                               We do not agree that there should be                    areas affected by changing sea level rise             or secondary component of a project.
                                               separate NWPs developed to authorize                    caused by climate change. The bank                       We do not believe that a definition of
                                               bank stabilization activities in riverine               stabilization structures and fills                    bioengineering is necessary because
                                               and lacustrine waters. Bank stabilization               authorized by this NWP must be                        there is a wide variety of bioengineering
                                               that may affect endangered or                           properly designed, so that they have                  techniques and project proponents and
                                               threatened species require pre-                         minimal individual and cumulative                     district engineers generally understand
                                               construction notification and                           adverse effects on coastal and riparian               what it means in a local context. It is not
                                               compliance with general condition 18,                   erosion and deposition processes. As                  possible at the national level to envision
                                               endangered species. We also do not                      sea level rise occurs, bank stabilization             every possible variation of technique
                                               agree that this NWP should be limited                   activities may no longer be effective,                and materials that would reasonably fit
                                               to habitat improvement projects,                        and it may be necessary for landowners                within the meaning of this term, but
                                               because it is often necessary to install                to relocate.                                          generally bioengineering involves the
                                               bank stabilization structures and fills to                 Two commenters suggested limiting                  use of a combination of vegetation and
                                               protect property and safety.                            all projects to a maximum length of 500               hard materials instead of only hard
                                                  Two commenters said that NWP 13                      linear feet, except for allowing                      materials such as rip-rap for bank
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                                               should not be reissued because it                       bioengineering projects to exceed that                stabilization. Also, as explained below,
                                               authorizes activities that may prevent                  length on a case-specific basis if the                the final NWP does not make a
                                               retreat that would be necessary to adapt                district engineer waives that limit. One              distinction between bioengineering and
                                               to sea level rise caused by climate                     commenter recommended not allowing                    other bank stabilization techniques. We
                                               change. These commenters also said                      vertical bulkheads longer than 500 feet.              agree that bioengineering, for the
                                               that sea level rise needs to be                         One commenter recommended limiting                    purposes of bank stabilization, includes
                                               considered in the decision on whether                   replacement of vertical bulkheads and                 providing protection from erosion and


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10199

                                               providing habitat for aquatic species.                  in high energy coastal and riverine                   not result in effective bank stabilization.
                                               We also agree that bioengineered                        environments, and said that the waiver                We have thus determined that it is not
                                               techniques can slow erosion rates and                   in the 2007 NWP 13 should be                          appropriate to establish a hierarchy of
                                               can have beneficial effects on habitat for              reinstated. Some commenters suggested                 preferred bank stabilization options
                                               macroinvertebrates and fish which is                    removing paragraph (c) entirely. Several              because such decisions are best left to
                                               why we proposed to modify this NWP                      of these commenters thought the                       district engineers that review project-
                                               to encourage greater use of this                        proposal would encourage                              specific pre-construction notifications,
                                               technique.                                              bioengineering methods for achieving                  and can take into account the
                                                 Several commenters recommended                        the necessary bank stabilization. Many                characteristics of the waterbody and the
                                               the NWP encourage the use of natural                    commenters stated that the waiver to the              surrounding area, and determine which
                                               materials over riprap. One commenter                    cubic yard limit should be removed                    bank stabilization method would be
                                               said that only native plant species                     from paragraph (c) to ensure that the                 most effective and environmentally
                                               should be used for bioengineered bank                   NWP authorizes only those activities                  preferable. We agree, however, that
                                               stabilization. Another commenter                        with minimal adverse effects on the                   bioengineering techniques may be
                                               recommended using natural stream                        aquatic environment. Many commenters                  environmentally preferable in many
                                               design methods for erosion prevention.                  asserted that bioengineering methods for              situations and that project proponents
                                               Several commenters objected to the                      bank stabilization are unproven and not               should consider such techniques where
                                               placement of plant material in waters of                as effective at preventing erosion as                 practicable in order to comply with the
                                               the United States, and also objected to                 hard structures. A few commenters                     general requirement to avoid and
                                               the planting of willows and similar                     suggested that the preference for                     minimize adverse effects to the aquatic
                                               species in and along waterways because                  bioengineering would be a hardship on                 environment. It is not practicable to
                                               these types of woody plants clog                        local governments. Another commenter                  require all bank stabilization activities
                                               waterways and cause maintenance                         suggested that bioengineering                         to be located landward of the ordinary
                                               problems at bridge and culvert                          techniques are rarely successful in arid              high water mark.
                                               crossings.                                              areas and in ephemeral waterways.                        One commenter asked if the volume
                                                 Division engineers can regionally                     Another commenter added that the                      of fill buried deeply below
                                               condition this NWP to encourage                         hydraulic forces in large rivers and tidal            bioengineering or turf reinforcement
                                               bioengineering or the use of natural                    areas require the use of large stone, the             mats could be exempted from the
                                               materials for bank stabilization in                     size of which exceeds the one cubic                   volume of fill that counts towards the
                                               waters subject to lower energy waves                    yard per running foot average size, and               one cubic yard per running foot limit in
                                               and currents. The use of plant materials                are not conducive to bioengineering.                  paragraph (b). Another commenter said
                                               as a component of a bank stabilization                  Several commenters said that                          that buried stone does not meet the
                                               activity can have beneficial
                                                                                                       bioengineering is not always                          regulatory definition of fill material, and
                                               environmental effects, such as providing
                                                                                                       appropriate for protecting infrastructure             said the volume of stone buried below
                                               shading and habitat for near-shore
                                                                                                       such as roads and bridges, and                        the ordinary high water mark should not
                                               organisms, or for riparian ecosystems.
                                                                                                       requested that the one cubic yard per                 count towards the one cubic yard per
                                               Proper maintenance should be done to
                                                                                                       foot waiver be left in place to protect               running foot limit. One commenter
                                               remove plants that colonize waterways,
                                                                                                       these structures. One commenter                       suggested replacing the words ‘‘below
                                               especially at culverts or bridges. We
                                                                                                       suggested modifying the NWP to require                the plane of’’ with ‘‘within the’’ when
                                               have added a provision to this NWP
                                                                                                       alternatives analyses for each proposed               describing the ordinary high water mark
                                               stating that if bioengineering or
                                                                                                       project using an established hierarchy,               in paragraph (c).
                                               vegetative bank stabilization is used,
                                               invasive plant species should not be                    beginning with bioengineering as the                     The definition of ‘‘fill’’ found in 33
                                               used, because Executive Order 13112,                    most preferable bank stabilization                    CFR part 323.2 clearly states that rock
                                               Invasive Species, states that agencies                  method and ending with the hard bank                  is fill material, and burying rock in a
                                               should not ‘‘authorize, fund, or carry                  stabilization structures. One commenter               waterway constitutes a discharge of fill
                                               out actions that it believes are likely to              observed that bank stabilization using                material. The volume of the buried
                                               cause or promote the introduction or                    bioengineering or any other method will               stone, along with all other fill material,
                                               spread of invasive species in the United                still result in adverse effects, and                  must be determined and that volume
                                               States or elsewhere.’’ The Executive                    suggested all bank stabilization                      placed below the plane of the ordinary
                                               Order states there are economic,                        activities should be located landward of              high water mark or high tide line is
                                               ecological, and human health impacts                    the ordinary high water mark.                         considered when reviewing the
                                               that are caused by invasive species, and                   In response to the many commenters                 proposed project. We have retained the
                                               we believe that invasive species should                 that objected to removing the provision               language in NWP because the phrase
                                               not be used for bioengineering bank                     allowing district engineers to waive,                 ‘‘below the plane of ’’ more accurately
                                               stabilization activities authorized by                  after reviewing a pre-construction                    describes the Corps jurisdiction in
                                               this NWP because of the adverse                         notification, the one cubic yard per                  waters of the United States. To the
                                               environmental effects those species can                 running foot limit, we have reinstated                extent that the location and type of fill
                                               cause.                                                  that provision in this NWP. We have                   placed below the plane of the ordinary
                                                 Many commenters supported the                         also reinstated the third pre-                        high water mark affects the potential for
                                               proposed modification of paragraph (c)                  construction notification threshold that              adverse effects to the aquatic
                                               to only allow bioengineering projects to                was in the 2007 version of NWP, which                 environment, the district engineer
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                                               exceed one cubic yard per running foot,                 requires pre-construction notification                would consider such factors in deciding
                                               and to not allow waivers from the                       for discharges exceeding one cubic yard               whether to grant a waiver request.
                                               district engineer for other types of                    per running foot along the bank below                    Several commenters said that
                                               projects. Many other commenters                         the plan of the ordinary high water mark              paragraph (d) should prohibit fills in
                                               objected to limiting that flexibility to                or the high tide line. We acknowledge                 special aquatic sites, including
                                               bioengineering techniques, stating that                 that bioengineering may not be                        wetlands. One commenter opposes
                                               bank protection structures are necessary                appropriate in all waters, because it may             removing the waiver provision in


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                                               10200                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               paragraph (d) for work in special aquatic               burdensome and costly to submit a pre-                transportation projects results in more
                                               sites.                                                  construction notification for every bank              than minimal adverse environmental
                                                  We believe that the pre-construction                 stabilization project.                                effects. One commenter said that this
                                               notification process affords the district                  We do not agree that it is necessary               NWP should not authorize parking lots.
                                               engineer an appropriate opportunity to                  to require pre-construction notification              One commenter stated that activities in
                                               review proposed activities in special                   for all activities authorized by this                 tidal waters should not be authorized by
                                               aquatic sites. Many streams and                         NWP. A large number of small bank                     this NWP because any proposed linear
                                               shorelines include, or are bordered by,                 stabilization activities are conducted                transportation project impacting tidal
                                               special aquatic sites, and precluding use               each year that result in minimal adverse              wetlands require an individual permit
                                               of this permit in these areas severely                  effects on the aquatic environment. We                to more thoroughly assess impacts on
                                               limits its usefulness for projects that                 believe that the existing pre-                        those aquatic habitats.
                                               have no more than minimal adverse                       construction notification thresholds are                 This NWP should not be limited to
                                               effects on the aquatic environment.                     sufficient for satisfying the minimal                 authorizing the maintenance of existing
                                               Additionally, it may be beneficial in                   adverse effects requirement for general               linear transportation projects. The terms
                                               some watersheds to stabilize eroding                    permits, and division engineers can                   and conditions of this NWP, including
                                               banks, even though small amounts of                     regionally condition this NWP to                      its acreage limits and pre-construction
                                               special aquatic sites may be impacted by                impose lower pre-construction                         notification thresholds, provide an
                                               a bank stabilization activity. Paragraph                notification thresholds, including                    effective means for authorizing linear
                                               (d) requires a written determination                    requiring pre-construction notification               transportation projects with minimal
                                               concluding that the activity will result                for all activities.                                   individual and cumulative adverse
                                               in minimal adverse effects. If a written                   Two commenters said that bank                      effects on the aquatic environment.
                                               waiver is not issued by the district                    stabilization activities must avoid                   Parking lots may be an integral part of
                                               engineer, then this NWP does not                        impacting tribal rights, tribal natural               a single and complete linear
                                               authorize such activities and the project               resources, and tribal cultural resources.             transportation project and may be
                                               proponent will have to obtain another                   Many commenters said that while bank                  authorized under this NWP. Small
                                               form of DA authorization.                               stabilization projects may reduce                     linear transportation projects
                                                  Several commenters expressed                         erosion at a site, they may transfer or               constructed or maintained in tidal
                                               support for inclusion of temporary fills                accelerate erosion in other areas of a                waters may be authorized by this NWP,
                                               required to accomplish work authorized                  waterbody.                                            if they comply with appropriate
                                               under this NWP. One commenter said                         General condition 17, tribal rights,               thresholds and result in minimal
                                               that temporary fills should remain in                   prohibits the impairment of all reserved              adverse effects on the aquatic
                                               place if their removal would do more                    tribal rights. We acknowledge that bank               environment. Division engineers can
                                               damage than allowing them to remain in                  stabilization activities may cause                    regionally condition this NWP to restrict
                                               place. One commenter requested a list                   indirect effects in other areas of the                or prohibit the use of this NWP to
                                               of mandatory best management                            waterbody and those indirect effects                  authorize structures or fills in tidal
                                               practices developed for temporary fills                 should be evaluated during the review                 waters where necessary.
                                               authorized by this NWP.                                 of a pre-construction notification, if it is             Most commenters suggested adding a
                                                  If the district engineer determines that             required. Activities that do not require              linear foot limit to this NWP to ensure
                                               temporary fills should remain in place                  a pre-construction notification have                  that it only authorizes activities with
                                               those fills may be authorized by another                minimal adverse effects on the aquatic                minimal adverse effects on the aquatic
                                               NWP, a regional general permit, or                      environment.                                          environment, stating that the current
                                               individual permit. We do not agree that                    Some commenters asked that                         NWP authorizes large amounts of small
                                               specifically requiring best management                  compensatory mitigation be required for               streams to be permanently lost or
                                               practices is appropriate, although                      all activities authorized by this NWP. A              significantly altered. One commenter
                                               division engineers may regionally                       few commenters remarked that                          recommended a 100 linear foot limit for
                                               condition this NWP to add appropriate                   compensatory mitigation should be                     the loss of perennial, intermittent, and
                                               best management practices. District                     required for adverse effects on high                  ephemeral streams. One commenter said
                                               engineers may also add conditions to                    quality riparian areas. Another                       that the 1⁄2-acre limit is too large when
                                               the NWP to require specific best                        commenter said that mitigation should                 compared to other NWPs that limit
                                               management practices for a particular                   be required when sheet piling is used to              impacts to 1⁄10-acre. One commenter
                                               activity.                                               stabilize banks.                                      suggested limiting private roads to 200
                                                  Several commenters stated that pre-                     We do not believe compensatory                     feet in length, with a maximum width
                                               construction notification should be                     mitigation should be required for all                 of 16 feet. One commenter
                                               required for all activities authorized by               bank stabilization activities. District               recommended that public road projects
                                               this NWP. One commenter requested                       engineers will determine when                         with multiple crossings should have a
                                               that no pre-construction notification be                compensatory mitigation is necessary to               maximum cumulative limit of two acres
                                               required for any bank stabilization                     ensure that an activity results in                    for all crossings associated with that
                                               exceeding one cubic yard per running                    minimal individual and cumulative                     project.
                                               foot in ephemeral and intermittent                      adverse effects on the aquatic                           We believe the 1⁄2-acre and 1⁄3-acre
                                               waters. One commenter suggested                         environment.                                          limits are appropriate for ensuring that
                                               removing all pre-construction                              This NWP is reissued with the                      the NWP authorizes only those linear
                                               notification requirements from work                     modifications discussed above.                        transportation projects that result in
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                                               done under this NWP in man-made                            NWP 14. Linear Transportation                      minimal individual and cumulative
                                               waterways. One agency recommended                       Projects. There were no changes                       adverse effects on the aquatic
                                               lowering a pre-construction notification                proposed for this NWP. One commenter                  environment. Division engineers can
                                               threshold to 100 feet for hard bank                     suggested that this NWP should                        regionally condition this NWP to
                                               stabilization projects such as riprap, and              authorize only the maintenance of                     decrease these acreage limits or impose
                                               300 feet for bioengineering projects. One               existing linear transportation projects               linear foot limits to provide additional
                                               commenter claimed it would be                           because the construction of new linear                protection for wetlands and other waters


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10201

                                               in a particular district or region. We do               or improvement; and the degree to                     commenter suggested requiring low
                                               not agree that public and private                       which the expansion, modification or                  ground pressure equipment, wide tires,
                                               crossings should have different acreage                 improvement may have been already                     rubberized racks, lightweight
                                               limits. The environmental effects are not               envisioned, or planning might already                 equipment, and the use of varied paths
                                               dependent on the status of the entity                   have begun, at the time the original                  to avoid repeatedly crossing wetlands at
                                               who proposes to construct the project. A                project was authorized. Under no                      the same location, to protect wetlands.
                                               200 linear foot limit was removed from                  circumstance will district engineers                  One commenter suggested sending pre-
                                               NWP 14 in 2007 to simplify this NWP.                    allow ‘‘piecemealing’’ of projects (for               construction notifications to tribes to
                                               The Corps is not aware of situations                    this or any other NWP) in order to meet               avoid impacts to tribal treaty natural
                                               where this change resulted in projects                  thresholds.                                           and cultural resources. One commenter
                                               being authorized that had more than                        One commenter requested that the                   recommended that the Corps consult
                                               minimal adverse effects.                                term ‘‘minimum necessary’’ used in the                with the Federal Highway
                                                  One commenter asserted that using                    first paragraph of this NWP be defined.               Administration to streamline projects
                                               this NWP prevents the public from                       One commenter asked if temporary fill                 and align with their efforts.
                                               commenting on large transportation                      may be put in place for up to two years                  The present pre-construction
                                               projects. Another commenter said that                   without requiring any mitigation, and                 notification thresholds provide
                                               this NWP should not authorize                           another commenter requested a                         sufficient protection for streams, and
                                               expansion of existing projects, because                 definition for ‘‘temporary.’’ One                     division engineers can regionally
                                               it discourages avoidance and                            commenter suggested that culverts or                  condition this NWP to require pre-
                                               minimization and is contrary to the                     other appropriate measures should be                  construction notification for proposed
                                               404(b)(1) Guidelines. One commenter                     required to maintain existing drainage                losses of stream beds that would exceed
                                               stated that use of this NWP for the                     patterns, all stream crossings should                 a specified amount. Streams with riffle
                                               expansion, modification, or                             span the bankfull width of a stream, and              and pool complexes are considered to
                                               improvement of previously authorized                    in cases where bottomless culverts or                 be special aquatic sites under the
                                               projects could result in cumulative                     bridge structures are not used, the                   404(b)(1) Guidelines and would require
                                               impacts that exceed the acreage limits                  bottom of the structure should match                  pre-construction notification. General
                                               and said the impacts of previously                      stream slope. Another commenter                       condition 11, equipment, establishes
                                               authorized projects should count                        suggested that the NWP should require                 requirements for equipment working in
                                               towards the acreage limit.                              the use of best management practices to               wetlands or mudflats and we believe
                                                  Linear transportation projects that                  avoid sediment loading of waters and                  this general condition provides
                                               involve small losses of waters of the                   that best management practices should                 sufficient protection for those types of
                                               United States and result in minimal                     be used in upland areas and within                    construction impacts. Division
                                               adverse effects on the aquatic                          waters to protect downstream water                    engineers can regionally condition this
                                               environment would not generally                         quality.                                              NWP to require pre-construction
                                               generate substantive public comments                       The decision as to whether a stream                notification for activities that may affect
                                               in response to a public notice and                      channel modification is the ‘‘minimum                 tribal treaty resources, and consult with
                                               should not require public notices. It is                necessary’’ and whether a fill is                     those tribes before making a decision on
                                               appropriate to authorize expansions,                    ‘‘temporary’’ is to be determined on a                whether the activity is authorized by
                                               modifications, or improvements to                       case-by-case basis, after considering the             this NWP. This NWP, as well as other
                                               existing projects, as long as those                     specifics of the proposed activity and                NWPs such as NWP 23, provides a
                                               activities comply with the terms and                    the types of aquatic resources proposed               means for streamlining the
                                               conditions of the NWP, including the                    to be impacted by the linear                          authorization of linear transportation
                                               applicable acreage limit. An expansion,                 transportation project. General                       projects and working cooperatively with
                                               modification, or improvement of an                      condition 2, aquatic life movements,                  the Federal Highway Administration
                                               existing project has few practicable                    and general condition 9, management of                and state departments of transportation.
                                               alternatives available because it is a                  water flows, require that linear                         The NWP is reissued without change.
                                               change to a previously constructed                      transportation projects be designed to                   NWP 15. U.S. Coast Guard Approved
                                               project. Alternatives that would involve                sustain corridors for aquatic life                    Bridges. We proposed to modify this
                                               relocating an existing project are likely               movements and maintain, to the                        NWP by removing reference to the U.S.
                                               to result in more adverse effects to the                maximum extent practicable, the pre-                  Coast Guard authorizing the discharge
                                               aquatic environment. An expansion,                      construction course, condition,                       of dredged or fill material into waters of
                                               modification, or improvement of a                       capacity, and location of streams and                 the United States as part of their bridge
                                               previously authorized single and                        other open waters. General condition                  permit. We also proposed to reference
                                               complete linear transportation project                  12, soil erosion and sediment controls,               the U.S. Coast Guard’s bridge permitting
                                               should include the previously                           requires permittees to take appropriate               authority under Section 9 of the Rivers
                                               authorized losses of waters of the                      measures to reduce or prevent                         and Harbors Act of 1899 and other
                                               United States when determining                          movements of sediment into waters                     applicable laws. We proposed to add
                                               whether the acreage limit would be                      during construction. Water quality                    section 10 to the regulatory authorities
                                               exceeded by the expanded, modified, or                  management measures may also be                       so that discharges authorized under
                                               improved project, if the expansion,                     required by district engineers on a case-             Section 404 of the Clean Water Act
                                               modification, or improvement is not a                   by-case basis after evaluating a pre-                 would be also authorized under the
                                               separate single and complete project.                   construction notification.                            Rivers and Harbors Act.
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                                               Factors that may affect this                               One commenter said that pre-                          One commenter agreed with adding
                                               determination include the length of time                construction notification should be                   section 10 authority to this NWP, which
                                               between the original project and the                    required for stream impacts that exceed               they believed would help clarify a
                                               expansion, modification or                              100 linear feet. Another commenter                    sometimes confusing permitting
                                               improvement; the degree of                              stated that any stream channel                        scenario. Another commenter objected
                                               independent utility of the original                     modifications should require pre-                     to adding section 10 authority, stating
                                               project and the expansion, modification                 construction notification. One                        that the section 9 permits issued by the


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                                               10202                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               U.S. Coast Guard for bridge and                         natural heritage resources. We do not                 forage fish habitat or that contain
                                               causeway construction satisfy all                       agree that pre-construction notification              aquatic vegetation. One commenter
                                               requirements of the Rivers and Harbors                  should be required for this NWP                       stated that the NWP should not be used
                                               Act of 1899 and adding section 10                       because any required sediment testing                 to authorize discharges in rare aquatic
                                               authorization is not necessary. One                     would identify contaminants. The                      environments such as vernal pools.
                                               commenter requested clarification                       sediment testing and potential impacts                   We believe that the small discharges
                                               regarding the applicability of section 10               to water quality are more appropriately               of dredged or fill material authorized by
                                               to the U.S. Coast Guard approved                        considered through the water quality                  this NWP comply with the similar in
                                               bridges over both navigable-in-fact and                 certification process. We have modified               nature requirement for general permits.
                                               historically navigable waters of the                    this NWP to clarify that disposal of                  District engineers will review pre-
                                               United States. One commenter                            dredged material in an area that has no               construction notifications and may
                                               requested definitions of the terms                      waters of the United States does not                  assert discretionary authority to add
                                               ‘‘causeway’’ and ‘‘approach fills.’’                    require a section 404 permit, because                 activity-specific conditions to the NWP
                                                  We agree that the U.S. Coast Guard’s                 disposal of dredged material may occur                authorization to ensure that the activity
                                               section 9 permit satisfies the permit                   in non-jurisdictional wetlands and                    results in minimal adverse
                                               requirements of the Rivers and Harbors                  waters, not just uplands.                             environmental effects. Division
                                               Act and have removed the reference to                      The NWP is reissued with the                       engineers may regionally condition this
                                               section 10 from the NWP. Discharges of                  modification discussed above.                         NWP to restrict or prohibit its use in
                                               dredged or fill material associated with                   NWP 17. Hydropower Projects. No                    specific waters or categories of waters,
                                               the construction of bridges across                      changes were proposed for this NWP.                   including fish foraging areas, vegetated
                                               navigable waters of the United States                   Several commenters said that this                     shallows, or vernal pools.
                                               require separate authorization under                    category of activities is inappropriate for              One commenter stated that the limit
                                               Section 404 of the Clean Water Act,                     authorization under an NWP because of                 for this NWP should only be expressed
                                               since navigable waters of the United                    the scope and scale of these projects.                in terms of area filled (i.e., up to 1⁄10-
                                               States are also considered waters of the                One commenter stated that these                       acre) and not include the volumetric
                                               United States under the Clean Water                     activities result in more than minimal                limit (i.e., 25 cubic yards). Another
                                               Act, and discharges of dredged or fill                  adverse effects on the aquatic                        commenter said that all discharged
                                               material into waters of the United States               environment, especially downstream                    material should consist of clean,
                                               require section 404 permits, unless they                effects such as the loss of riffle and pool           uncontaminated sand, crushed rock, or
                                               are eligible for an exemption from                      complexes and degradation of water                    stone. One commenter recommended
                                               permit requirements. Historically                       quality through increased sediment                    adding language requiring that the
                                               navigable waters of the United States                   loads.                                                discharge will not result in significant
                                               may still be subject to jurisdiction under                 This NWP authorizes small                          changes to stream geomorphology or
                                               Rivers and Harbors Act of 1899,                         hydropower projects that have minimal                 hydrology, and that the discharge will
                                               depending on the case-specific                          adverse effects on the aquatic                        not impede navigation.
                                               circumstances. We do not believe it is                  environment. All activities authorized                   The 25 cubic yard limit for regulated
                                               necessary to define what causeways and                  by this NWP require pre-construction                  excavation activities and the 1⁄10-acre
                                               approach fills are, since they would be                 notification, so that district engineers              limit for losses of waters of the United
                                               identified in the specific plans approved               can review each proposed hydropower                   States caused by discharges of dredged
                                               by the U.S. Coast Guard as part of their                project and make a case-specific                      or fill material are both necessary to
                                               section 9 permit.                                       determination whether the minimal                     ensure that this NWP authorizes only
                                                  This NWP is reissued with the                        effects requirement has been met.                     those activities that have minimal
                                               modification discussed above.                           Discretionary authority will be                       individual and cumulative adverse
                                                  NWP 16. Return Water From Upland                     exercised, and another form of                        effects on the aquatic environment.
                                               Contained Disposal Areas. We did not                    Department of the Army authorization                  General condition 6, suitable material,
                                               propose any changes to this NWP. This                   would be required, if the district                    prohibits the use of unsuitable fill
                                               NWP provides section 404 authorization                  engineer determines that a particular                 material. The fill material must not have
                                               for the discharge of return water from a                hydropower project would result in                    toxic pollutants that are present in toxic
                                               dredged material placement facility                     more than minimal individual and                      amounts. Compliance with general
                                               located in uplands, because that                        cumulative adverse effects to the aquatic             condition 9, management of water
                                               discharge of return water into waters of                environment or any other public interest              flows, will ensure that the activity does
                                               the United States has been                              review factor. District engineers may                 not cause more than minimal adverse
                                               administratively defined as a ‘‘discharge               also require compensatory mitigation to               effects to stream geomorphology or
                                               of dredged material’’ (see 33 CFR                       offset losses of aquatic resource                     hydrology. General condition 1,
                                               323.2(d)(1)(ii)). One commenter said the                functions.                                            navigation, states that NWP activities
                                               NWP should address both the technical                      This NWP is issued without change.                 cannot cause a more than minimal
                                               requirements and water quality of the                      NWP 18. Minor Discharges. We did                   adverse effect to navigation.
                                               return water due to the potential for the               not propose modifications to this NWP.                   This NWP is reissued without change.
                                               return water to degrade water quality for               Several commenters expressed support                     NWP 19. Minor Dredging. There were
                                               natural heritage resources. One                         for the reissuance of this NWP. A few                 no changes proposed for this NWP. One
                                               commenter said that pre-construction                    commenters said that this NWP does not                commenter recommended that the NWP
                                               notification should be required for                     comply with the ‘‘similar in nature’’                 include a cumulative volume limit for
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                                               activities authorized by this NWP to                    requirement for general permits. Other                multiple single and complete dredging
                                               ensure that suspended contaminated                      commenters asserted that the                          projects. One commenter recommended
                                               sediments do not reenter waterways and                  cumulative impacts resulting from the                 modifying the NWP to require that
                                               impact state submerged lands.                           use of this NWP would be more than                    dredge material be limited to a
                                                  The water quality certification issued               minimal. Another commenter said that                  maximum of 25 cubic yards from a
                                               for a specific dredging project should                  this NWP should not authorize                         1,000 square foot area, not disturb
                                               address any water quality concerns for                  discharges into waters that provide                   sediments in an area known or


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10203

                                               suspected to contain toxic pollutants,                  proposed modifications, stating that the              authorize discharges of dredged or fill
                                               and the disposal of dredged material at                 NWP could authorize large dredge and                  material into waters of the United States
                                               an upland location. Another commenter                   fill operations that would result in net              to construct valley fills. In the February
                                               said that pre-construction notification                 adverse effects on the aquatic                        16, 2011, proposal, Option 2 was
                                               should be required for all activities to                environment that would be more than                   identified as the Corps preferred option.
                                               ensure that sediments are not                           minimal. One commenter stated that the                Both Options 2 and 3 require a pre-
                                               contaminated and do not cause impacts                   NWP should be limited to interim                      construction notification for activities
                                               to state owned land. One commenter                      response activities and that a separate               authorized by NWP 21, and permittees
                                               stated that the activities authorized by                permit should be required for final                   would have to receive written
                                               this NWP are not similar in nature and                  restoration response. Another                         authorization from the district engineer
                                               do not result in cumulative minimal                     commenter said that there should be a                 prior to commencing the activity.
                                               adverse environmental effects.                          requirement to remove temporary                          A large majority of commenters
                                                  This NWP may be used only once for                   structures and fill. This commenter also              supported Option 1 and opposed the
                                               each single and complete project (see                   recommended that the NWP include                      reissuance of NWP 21, including any
                                               general condition 15, single and                        criteria for temporary structures or fills,           modification of that NWP. Over 26,000
                                               complete project). Therefore, each single               such as a requirement to restore                      of those comments were form letters.
                                               and complete dredging project is subject                wetlands to the maximum extent                        Several commenters recommended
                                               to the 25 cubic yard limit. District                    practicable, to ensure there are no                   adopting Option 2. Two commenters
                                               engineers will also review pre-                         lasting impacts from these activities. A              supported Option 3. Many commenters
                                               construction notifications and other                    commenter said that this NWP should                   stated that NWP 21 should be reissued
                                               requests for NWP verifications, and will                require coordination with the                         without change from the NWP issued in
                                               exercise discretionary authority if they                appropriate state wetland or water                    2007.
                                               determine that the use of this NWP in                   resources program.                                       While some commenters expressed
                                               a particular region is resulting in more                   This NWP authorizes activities in                  support for Option 1, they also said that
                                               than minimal cumulative adverse effects                 waters of the United States to remediate              if NWP 21 is to be reissued, Option 2
                                               on the aquatic environment. We believe                  spills of oil and hazardous substances,               should be selected and modified to
                                               that the 25 cubic yard limit is sufficient              which normally results in                             remove the provision allowing district
                                               to satisfy the minimal adverse                          environmental benefits. We do not agree               engineers to waive the 300 linear foot
                                               environmental effects requirement for                   that the NWP should be limited to                     limit for the loss of intermittent or
                                               general permits, and that an areal limit,               interim responses. It should also                     ephemeral stream bed. Another
                                               such as the 1,000 square feet                           authorize the final response activity that            commenter stated that if NWP 21 is
                                               recommended above, is not necessary.                    results in the removal of the oil or                  reissued, it should not authorize any
                                               Division engineers may impose regional                  hazardous substances, as well as the                  losses of intermittent or perennial
                                               conditions on this NWP to restrict or                   authorization to remove any temporary                 streams.
                                               prohibit its use in waters known to have                structures or fills, to the extent that a                We believe that district engineers
                                               contaminated sediments or in waters                     Department of the Army permit is                      should have the ability to waive the 300
                                               where there is sufficient reason to                     required to remove such temporary                     linear foot limit for the loss of
                                               believe that there are contaminated                     structures or fills. General condition 13,            ephemeral or intermittent stream bed if
                                               sediments, that would cause more than                   removal of temporary fills, requires                  they make a case-specific determination
                                               minimal adverse effects to water quality                temporary fills to be removed in their                that the proposed activity will result in
                                               if they were disturbed by these minor                   entirety, and the affected areas                      minimal individual and cumulative
                                               dredging activities. A separate                         revegetated, if necessary. We do not                  adverse effects on the aquatic
                                               Department of the Army authorization                    agree that this NWP should require                    environment. For proposed activities
                                               must be obtained if the project                         coordination with state wetland or                    under paragraph (b) of NWP 21 that
                                               proponent plans to deposit the dredged                  water resource agencies, since those                  would result in the loss of greater than
                                               material into waters of the United                      agencies are likely to have an                        300 linear feet of intermittent or
                                               States, including jurisdictional                        independent authority to regulate such                ephemeral stream bed, district engineers
                                               wetlands. Absent such authorization,                    response activities, as well as their own             will coordinate the pre-construction
                                               the dredged material must be deposited                  procedures for reviewing and approving                notifications with the resource agencies,
                                               in an upland area or an approved                        those activities. As a practical matter,              to solicit their comments (see paragraph
                                               dredged material disposal facility.                     such remediation efforts almost always                (d) of general condition 31). Those
                                                  This NWP is reauthorized without                     involve coordination among multiple                   comments will be used by the district
                                               change.                                                 agencies.                                             engineer in making his or her minimal
                                                  NWP 20. Response Operations for Oil                     This NWP is reissued as proposed.                  adverse effects determination. The loss
                                               and Hazardous Substances. We                               NWP 21. Surface Coal Mining                        of intermittent or perennial streams
                                               proposed to change the name of this                     Activities. We proposed three options                 caused by NWP 21 activities may still
                                               NWP, and modify its terms and                           concerning this NWP. The first option                 result in minimal individual and
                                               conditions to authorize a wider set of                  was not to reissue NWP 21 and to let it               cumulative adverse effects on the
                                               activities, such as containment and                     expire on March 18, 2012. The other                   aquatic environment, and in such cases
                                               mitigation actions, to more effectively                 two options consisted of reissuing the                authorization by NWP is appropriate.
                                               authorize efforts to manage releases of                 NWP with modifications. Option 2 was                  Note that the 300 linear foot limit may
                                               oil or hazardous substances. We also                    to reissue NWP 21 with a 1⁄2-acre limit,              not be waived for perennial streams.
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                                               proposed to authorize training exercises                including a 300 linear foot limit for the             Activities authorized under paragraph
                                               for the cleanup of oil and hazardous                    loss of stream bed. Under Option 2,                   (a) of NWP 21 do not require agency
                                               substances, including those that involve                NWP 21 would not authorize discharges                 coordination because paragraph (a) does
                                               temporary structures or fills.                          of dredged or fill material into waters of            not authorize any expansion of surface
                                                  Five commenters expressed support                    the United States to construct valley                 coal mining activities in waters of the
                                               for the proposed changes to this NWP.                   fills. Option 3 was similar to Option 2,              United States and the district engineer
                                               One commenter objected to the                           but under Option 3 NWP 21 could                       previously determined, and must again


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                                               10204                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               confirm in writing, that those activities               independence and economic prosperity                  approach was the environmental review
                                               will result in minimal individual and                   of our country. Another commenter said                that occurs in connection with obtaining
                                               cumulative adverse effects and qualify                  there is no need to limit NWP 21 to 1⁄2-              a SMCRA permit, and that the SMCRA
                                               for NWP authorization. Many of the                      acre and 300 linear feet and prohibit                 regulations related to stream protection
                                               surface coal mining activities authorized               valley fills, because district engineers              have changed since the previous NWP
                                               under the 2007 NWP 21 already had                       review every pre-construction                         21 was issued.1 The new acreage and
                                               agency coordination because they                        notification and can require an                       linear foot limits will ensure that this
                                               resulted in the loss of greater than 1⁄2-               individual permit if necessary.                       NWP contributes no more than minimal
                                               acre of waters of the United States.                       We have adopted Option 2 because it                individual and cumulative adverse
                                                  Many commenters stated their                         provides greater assurance that NWP 21                effects to the aquatic environment, by
                                               preference for Option 2 because it                      will authorize only those discharges of               limiting the amount of waters of the
                                               would not allow valley fills for surface                dredged or fill material into waters of               United States that can be filled by each
                                               coal mining activities, which they                      the United States that have minimal                   NWP 21 activity.
                                               believe substantially alter watersheds                  individual and cumulative adverse                        Many commenters said the Corps
                                               and associated headwater streams, and                   effects on the aquatic environment.                   should fulfill its June 2009
                                               generally are alleged to cause more than                Surface coal mining activities that                   determination to prohibit the use of
                                               minimal adverse effects on the aquatic                  involve discharges of dredged or fill                 NWP 21 to authorize surface coal
                                               environment. One commenter suggested                    material that require section 404 permits             mining activities in six states in
                                               adding a provision that would prohibit                  but do not qualify for NWP 21 may be                  Appalachia because these activities
                                               the use of NWP 21 for activities                        authorized by other forms of                          result in more than minimal adverse
                                               associated with mountain-top removal                    Department of the Army authorization,                 effects to the aquatic environment,
                                               mining.                                                 such as individual permits or regional                individually and cumulatively. Some
                                                  We have selected Option 2 for the                    general permits. We have added the 1⁄2-               commenters said the proposed
                                               reissuance of NWP 21, and have made                     acre limit, and the 300 linear foot limit             reissuance of NWP 21 is contrary to the
                                               some additional modifications to reduce                 for the loss of stream bed, to make this              Corps June 18, 2010, decision to
                                               hardships on permittees who previously                  NWP consistent with many of the other                 suspend NWP in the Appalachian
                                               obtained authorization under the NWP                    NWPs (e.g., NWPs 29, 39, 40, 42, 43, 44,              region of Kentucky, Ohio, Pennsylvania,
                                               21 issued on March 12, 2007, and                        and 51). We have also added a                         Tennessee, Virginia, and West Virginia,
                                               invested substantial resources in                       prohibition against using this NWP to                 which stated that continued use of this
                                               reliance on that NWP authorization.                     authorize discharges of dredged or fill               NWP may result in more than minimal
                                               These modifications are discussed in                    material into waters of the United States             adverse effects to aquatic resources.
                                               greater detail below. In addition, we                   to construct valley fills. Such limits are            Many commenters stated that surface
                                               have added a definition of ‘‘valley fill’’              necessary to constrain the adverse                    coal mining activities in Appalachia
                                               to the NWP to clarify the activities to                 effects to the aquatic environment, to                have resulted in the loss of a couple of
                                               which the valley fill prohibition applies.              ensure compliance with the statutory                  thousand miles of streams, substantially
                                               For the purposes of this NWP, a ‘‘hollow                requirement that general permits,                     degraded water quality, and are harmful
                                               fill’’ is considered a valley fill. This                including NWPs, may only authorize                    to the health and drinking water of
                                               NWP authorizes discharges of dredged                    those activities that have minimal                    Appalachian citizens. They also said the
                                               or fill material into waters of the United              individual and cumulative adverse                     Corps should follow science and stop
                                               States when those discharges are                        effects on the aquatic environment. We                issuing permits, including individual
                                               associated with surface coal mining                     do not believe it is efficient to rely on             permits, for surface coal mining
                                               activities. The Corps review is focused                 the pre-construction notification process             activities in these six Appalachian states
                                               on the individual and cumulative                        alone to ensure minimal adverse                       because those activities cause
                                               adverse effects to the aquatic                          environmental effects. Many other                     significant degradation of waters of the
                                               environment, and determining                            NWPs use a combination of acreage                     United States, and this region cannot
                                               appropriate mitigation that may be                      and/or linear foot limits and pre-                    afford to lose more of its vital natural
                                               needed to ensure that the adverse effects               construction notification requirements                resources.
                                               on the aquatic environment are                          to ensure compliance with Section                        In accordance with the June 11, 2009,
                                               minimal, individually and                               404(e) of the Clean Water Act, as well                memorandum of agreement
                                               cumulatively. It does not extend to the                 as 33 CFR 322.2(f) and 33 CFR 323.2(h).               implementing the interagency action
                                               mining operation as a whole. The                           Previous versions of NWP 21 did not                plan on Appalachian Surface Coal
                                               Surface Mining Control and                              have any acreage or linear foot limits,               Mining, which was signed by the
                                               Reclamation Act of 1977 (SMCRA), 30                     and relied solely on the pre-                         Department of the Army, the
                                               U.S.C. 1201 et seq., and its                            construction notification review process              Department of Interior, and the U.S.
                                               implementing regulations address the                    and permit conditions to reduce adverse               Environmental Protection Agency, the
                                               environmental impacts of proposed                       effects on the aquatic environment to                 Corps issued a proposal in the Federal
                                               surface coal mining operations as a                     satisfy the minimal adverse                           Register on July 15, 2009, to modify
                                               whole, including adverse effects to                     environmental effects requirement for                 NWP 21 so that it would not authorize
                                               uplands and changes in land use.                        general permits. We believe that                      discharges of dredged or fill material
                                               SMCRA is administered by the Office of                  approach is no longer appropriate                     into waters of the United States in the
                                               Surface Mining Reclamation and                          because of the inconsistency with other               Appalachian region of Kentucky, Ohio,
                                               Enforcement and states with approved                    NWPs, the possibility that larger losses              Pennsylvania, Tennessee, Virginia, and
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                                               regulatory programs under SMCRA.                        of waters of the United States might be
                                                  Two commenters supported Option 3,                   authorized, and the difficulty of                       1 The Office of Surface Mining has announced its

                                               and they said the production of energy                  documenting minimal adverse effect                    intention to further revise these requirements
                                               from all sources, including surface-                    determinations for losses of aquatic                  however such revisions will not be in place at the
                                                                                                                                                             time the NWPs are reissued. The Corps may
                                               mined coal, is vitally important to the                 resource area and functions that exceed               reconsider these limits in future promulgations of
                                               short-term economic recovery of the                     those allowed in other NWPs. We note                  the NWPs based on its experience and any changes
                                               United States and the long-term energy                  that part of the basis for the earlier                in the broader regulatory context.



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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                            10205

                                               West Virginia (see 74 FR 34311). In the                 review pre-construction notifications for             than 1⁄2-acre of waters of the United
                                               June 18, 2010, issue of the Federal                     activities authorized under paragraph                 States, do not result in the loss of greater
                                               Register (75 FR 34711), the Corps                       (b) of this NWP and may require                       than 300 linear feet of stream bed
                                               announced the suspension of NWP 21                      compensatory mitigation to offset losses              (unless that 300 linear foot limit for
                                               in the Appalachian region of six states                 of waters of the United States and                    intermittent and ephemeral streams is
                                               (i.e., Kentucky, Ohio, Pennsylvania,                    ensure the adverse effects on the aquatic             waived by the district engineer after
                                               Tennessee, Virginia, and West Virginia)                 environment are minimal, individually                 agency coordination and making a
                                               and said that it would consider                         and cumulatively. Compensatory                        written determination that the activity
                                               modifying NWP 21.                                       mitigation required for activities                    will result in minimal individual and
                                                  As a result of our review of the                     verified under the 2007 NWP 21 will                   cumulative adverse effects on the
                                               comments received in response to the                    continue to be required, and may be                   aquatic environment), and do not
                                               February 16, 2011, proposal we have                     augmented if the district engineer                    involve discharges of dredged or fill
                                               determined that it would be appropriate                 determines that they do not adequately                material into waters of the United States
                                               to adopt Option 2 and substantially                     compensate for losses of aquatic                      to construct valley fills.
                                               modify NWP 21 by imposing acreage                       resource function and ensure minimal                     One commenter objected to the
                                               and linear foot limits, as well as                      individual and cumulative adverse                     proposed reissuance of NWP 21, stating
                                               prohibiting its use to authorize                        effects. Suspension of an NWP is an                   that it authorizes impacts for activities
                                               discharges of dredged or fill material                  interim measure to be taken if there are              that are not similar in nature, such as
                                               into waters of the United States to                     substantive concerns that an NWP                      mining operations, impoundments,
                                               construct valley fills associated with                  activity is potentially causing more than             processing plants, and road crossings.
                                               surface coal mining activities, to ensure               minimal adverse environmental effects,                The commenter said that the Corps
                                               that the NWP authorizes only those                      while the Corps collects additional                   decision documents do not recognize
                                               activities that result in minimal                       information and considers                             that impoundments can cause massive
                                               individual and cumulative adverse                       modifications to that NWP to satisfy                  spills or contaminate well water.
                                               effects on the aquatic environment. The                 statutory or regulatory requirements for                 We do not agree that this NWP
                                               1⁄2-acre and 300 linear foot limits will
                                                                                                       general permits, such as compliance                   authorizes activities that are not similar
                                               substantially reduce the amount of                      with Section 404(e) of the Clean Water                in nature. This NWP authorizes surface
                                               stream bed and other waters lost as a                   Act. We fully considered the comments                 coal mining activities, a broad category
                                               result of activities authorized by this                 received in response to the July 15,                  that includes a variety of features that
                                               NWP, and limit this NWP to minor fills                  2009, proposal to suspend NWP 21 and                  may be constructed by discharging
                                               associated with surface coal mining                     used those comments to develop the                    dredged or fill material into waters of
                                               activities, such as the construction of                 three options presented in the February               the United States, the activities
                                               sediment ponds. Issues relating to the                  16, 2011, proposal to reissue NWP 21.                 regulated by the Corps under Section
                                               use of individual permits to authorize                  We have now determined that adopting                  404 of the Clean Water Act. Discharges
                                               discharges of dredged or fill material                  Option 2 addresses the concern that led
                                               into waters of the United States                                                                              of dredged or fill material into waters of
                                                                                                       to our previous suspension of NWP 21                  the United States may be used to
                                               associated with surface coal mining                     in the six Appalachian states, but in a
                                               activities are outside the scope of the                                                                       construct sediment ponds, road
                                                                                                       more effective and equitable way. It is               crossings, etc. that are necessary to
                                               NWP reissuance process and are not                      not the geographic location of activities,
                                               addressed in this rule.                                                                                       conduct surface coal mining activities,
                                                                                                       but rather the nature of these activities             or they may occur while coal is being
                                                  The proposed reissuance of NWP 21,
                                                                                                       and their associated discharges that may              mined (e.g., mine-throughs).
                                               as well as the selection of Option 2 to
                                               reissue the NWP with 1⁄2-acre and 300                   lead to more than minimal adverse                     Impoundments constructed in waters of
                                               linear foot limits and a prohibition                    effects. By prohibiting the use of NWP                the United States should be properly
                                               against authorizing discharges of                       21 for discharges associated with valley              maintained (see general condition 14,
                                               dredged or fill material into waters of                 fills and activities exceeding                        proper maintenance). District engineers
                                               the United States to construct valley                   appropriate thresholds, which are                     may also require non-Federal permittees
                                               fills, is not contrary to the suspension of             consistent with the thresholds used for               to demonstrate that those impoundment
                                               NWP 21 in the Appalachian region of                     many other NWPs, we can ensure that                   structures comply with applicable dam
                                               these six states. The NWP reissued                      activities that may result in more than               safety criteria (see general condition 24,
                                               today has been substantially modified                   minimal individual and cumulative                     safety of impoundment structures).
                                               from the 2007 version of NWP 21, with                   adverse effects obtain individual                        One commenter said that if NWP 21
                                               paragraph (a) authorizing Corps district                permits, and those activities that will               was reissued and could be used to
                                               engineers to re-authorize activities that               not result in more than minimal adverse               authorize valley fills, the Corps would
                                               were previously verified under the 2007                 effects can be authorized by an NWP,                  violate the requirement in the 404(b)(1)
                                               NWP 21 authorization where that would                   regardless of the region of the country               Guidelines that no discharge of dredged
                                               be appropriate, and paragraph (b)                       in which they occur.                                  or fill material shall be permitted which
                                               imposing the acreage and linear foot                       Only those surface coal mining                     will cause or contribute to significant
                                               limits stated above, as well as the                     activities involving discharges into                  degradation of waters of the United
                                               condition prohibiting its use for the                   waters of the United States that received             States. This commenter also stated that
                                               construction of valley fills in waters of               written authorization under the 2007                  the proposed 300 linear foot limit for
                                               the United States, on new NWP 21                        NWP 21 may be eligible for                            the loss of stream bed would not
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                                               activities. The substantial changes in the              authorization under paragraph (a) of this             prevent significant degradation of
                                               terms and conditions of the reissued                    NWP. Activities that were subject to the              streams, and objected to the proposed
                                               NWP 21 will ensure that the activities                  June 18, 2010, suspension of NWP 21 in                waiver of that limit for intermittent and
                                               authorized by this NWP result in                        the Appalachian region of the six states              ephemeral streams, if the district
                                               minimal individual and cumulative                       may be eligible for NWP 21                            engineer determined that such a loss
                                               adverse effects on the aquatic                          authorization under paragraph (b) if                  would result in minimal adverse effects
                                               environment. District engineers will                    they do not result in the loss of greater             on the aquatic environment.


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                                               10206                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                  The NWP 21 reissued today does not                   materials to reduce their transport to                Guidelines require the Corps or other
                                               authorize discharges of dredged or fill                 downstream waters is regulated under                  permitting authority to predict
                                               material into waters of the United States               Section 402 of the Clean Water Act, and               cumulative effects by evaluating the
                                               to construct valley fills, unless under                 requires a National Pollutant Discharge               number of individual discharges of
                                               paragraph (a) the activity was                          Elimination System (NPDES) permit.                    dredged or fill material into waters of
                                               previously verified under the 2007 NWP                  The NPDES permit is issued by states                  the United States expected to be
                                               21 and the district engineer has                        that have approved programs or the U.S.               authorized by that general permit until
                                               determined that those activities still                  EPA.                                                  it expires (see 40 CFR 230.7(b)(3)).
                                               qualify for NWP 21 authorization under                     One commenter said the Corps has                      The decision document for this NWP
                                               the 2012 NWP general conditions,                        ignored cumulative impacts from                       includes evaluations of cumulative
                                               applicable regional conditions, and any                 discharges of dredged or fill material                effects under both approaches, and
                                               activity-specific conditions such as                    previously authorized by NWP 21 in                    concludes that the reissuance of this
                                               compensatory mitigation requirements.                   proposing Option 2 as a preferred                     NWP, including the imposition of the
                                               For those previously authorized surface                 alternative. The commenter also stated                1⁄2-acre limit, 300 linear foot limit, and

                                               coal mining activities, the district                    that the draft decision documents fail to             prohibition against authorizing valley
                                               engineer determined that the adverse                    provide any evidence that would                       fills on activities that were not
                                               effects on the aquatic environment are                  support a minimal effects determination               previously authorized under the 2007
                                               minimal, individually and                               and that the Corps only considers                     NWP 21, as well as the pre-construction
                                               cumulatively. To re-verify the NWP                      cumulative effects during the five year               notification requirements and other
                                                                                                       period the NWP is in effect and this                  procedural safeguards, will authorize
                                               authorization under the 2012 NWP 21,
                                                                                                       ignores the fact that valley fills bury               only those activities with minimal
                                               the district engineer must determine
                                                                                                       streams permanently, whether                          individual and cumulative adverse
                                               that the activity continues to result in
                                                                                                       authorized by past nationwide or                      effects on the aquatic environment.
                                               minimal individual and cumulative
                                                                                                       individual permits, or in the future. The             Activities authorized under the 2007
                                               adverse effects on the aquatic
                                                                                                       commenter also said that Option 2                     NWP 21 were already determined by
                                               environment. Surface coal mining
                                                                                                       ignores the cumulative amount of                      district engineers to result in minimal
                                               activities that involve discharges of
                                                                                                       stream loss or acreage in a watershed                 individual and cumulative adverse
                                               dredged or fill material into waters of
                                                                                                       from multiple permits.                                effects on the aquatic environment. The
                                               the United States for the construction of                  We have taken into account                         other procedural safeguards include the
                                               valley fills that were not previously                   cumulative impacts from discharges of                 authority for division engineers to
                                               verified under the 2007 NWP 21 are                      dredged or fill material previously                   modify, suspend, or revoke NWP 21
                                               subject to paragraph (b) of the 2012                    authorized by NWP 21, and cumulative                  authorizations on a regional basis, and
                                               NWP 21 and cannot be authorized by                      effects of discharges of dredged or fill              the authority for district engineers to
                                               NWP 21. Discharges of dredged or fill                   material previously authorized by                     modify NWP 21 authorizations by
                                               material into waters of the United States               individual permits, when developing                   adding conditions, such as
                                               authorized by NWP 21 require water                      the proposal to reissue NWP 21,                       compensatory mitigation requirements,
                                               quality certification. If water quality                 including Option 2. For NWP 21                        to ensure minimal individual and
                                               certification is not obtained or waived,                activities that were not previously                   cumulative adverse effects on the
                                               that activity is not authorized by NWP                  authorized by the 2007 NWP 21,                        aquatic environment. District engineers
                                               21. The water quality certifications                    paragraph (b) of NWP 21 imposes a 1⁄2-                may also assert discretionary authority
                                               issued by states are to be considered by                acre limit on NWP 21, as well as a 300                to require individual permits in cases
                                               district engineers to be conclusive                     linear foot limit for losses of stream bed,           where the adverse effects will be more
                                               regarding water quality issues, unless                  and does not authorize discharges of                  than minimal.
                                               the Regional Administrator of the U.S.                  dredged or fill material into waters of                  Under the National Environmental
                                               Environmental Protection Agency                         the United States to construct valley                 Policy Act approach to assessing
                                               advises the district engineer of other                  fills. These changes will reduce the                  cumulative effects, the decision
                                               water quality concerns that need to be                  number of surface coal mining activities              document discusses, in general terms,
                                               taken into consideration. The                           authorized by NWP 21, when compared                   the various activities (Federal, non-
                                               construction of impoundments                            to previous versions of NWP 21, which                 Federal, and private actions) that may
                                               authorized by NWP 21 is generally a                     had no acreage or linear foot limits, and             adversely affect the quantity and quality
                                               minor cause of changes to water quality.                could be used to authorize discharges of              of aquatic resources in a watershed or
                                               Most of the changes to water quality are                dredged or fill material into waters of               other geographic region used for
                                               due to the overall surface coal mining                  the United States to construct valley                 cumulative effects analysis, regardless
                                               activity and the change in land use                     fills. We determined that these limits                of whether those activities occurred in
                                               (including uplands) that occurs as a                    will ensure that the adverse effects of               the past or are expected to occur in the
                                               result of those mining activities. The                  discharges authorized by NWP 21 are                   present or reasonably foreseeable future.
                                               discharges of dredged or fill material                  minimal, both individually and                        Under the 404(b)(1) Guidelines
                                               into waters of the United States                        cumulatively. Under the National                      approach for assessing cumulative
                                               authorized by NWP 21 constitute a                       Environmental Policy Act, an                          effects of the issuance of a general
                                               small proportion of the overall fill                    assessment of cumulative effects has to               permit such as NWP 21, the decision
                                               placed in a watershed to dispose of the                 consider the past, present, and                       document evaluates the number of
                                               rock, soil, and other materials that are                reasonably foreseeable future actions                 discharges of dredged or fill material
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                                               produced by the surface coal mining                     regardless of what agency (Federal or                 into waters of the United States
                                               activity. As water percolates through the               non-federal) or person undertakes such                expected to occur during the five-year
                                               larger overall fill that has been placed in             actions (see 40 CFR 1508.7). In addition,             period the NWP would be in effect, as
                                               uplands and streams, the water                          the 404(b)(1) Guidelines require a                    well as the estimated loss of waters of
                                               chemistry changes. The effluent                         different approach to cumulative effects              the United States and compensatory
                                               discharged from impoundments                            analysis for the issuance of a general                mitigation. District and division
                                               constructed to trap sediments and other                 permit, such as NWP 21. The 404(b)(1)                 engineers are to supplement these


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10207

                                               analyses when they prepare                              functions and services, so the net effects            enhancement, and preservation
                                               supplemental decision documents for                     will be minimal. Another commenter                    activities (see 73 FR 19596–19598). In
                                               this NWP, and these supplemental                        stated that the Corps relies heavily on               accordance with the 2008 rule, the
                                               decision documents are to include                       mitigation, such as stream creation,                  Corps is not relying on stream creation
                                               cumulative effects analyses at a regional               restoration, and enhancement, but there               as a mechanism to provide
                                               level. which can be highly informative                  is no evidence that stream creation                   compensatory mitigation for NWP 21
                                               regarding impacts at a local watershed                  works. The commenter also indicated                   activities. In cases where compensatory
                                               level. The appropriate geographic scope                 that the 404(b)(1) Guidelines provide                 mitigation is required for NWP 21
                                               of those cumulative effects analyses are                that no permit may rely on mitigation                 activities, those compensatory
                                               at the discretion of the division or                    techniques unless they have been                      mitigation requirements will be
                                               district engineers.                                     demonstrated to be effective in                       specified as activity-specific conditions
                                                  The Corps considers and addresses                    circumstances similar to those under                  of NWP 21 authorizations. The required
                                               cumulative environmental effects of                     consideration, and that the 2008                      components of a compensatory
                                               NWP 21 (and other NWPs) in two                          compensatory mitigation rule requires                 mitigation plan are specified at 33 CFR
                                               distinct ways. First, when Corps                        that the district engineer assess the                 332.4(c)(2)–(14), and the district
                                               Headquarters evaluates and proposes to                  likelihood for ecological success. The                engineer will evaluate each
                                               issue or re-issue a NWP (such as NWP                    commenter said the Corps cannot issue                 compensatory mitigation proposal to
                                               21), we evaluate cumulative effects at                  an NWP without assessing mitigation                   assess its potential for ecological
                                               the national level, using available                     effectiveness and success in the specific             success, and consider the relevant
                                               national information on aquatic                         context in which the mitigation                       factors provided in 33 CFR 332.3. The
                                               resource status and trends and the                      technique would be used. The                          compensatory mitigation plan must be
                                               general effects human activities have on                commenter concluded that the Corps                    approved by the district engineer and
                                               aquatic resources. The cumulative                       mitigation analysis fails to contain any              monitoring will be required to assess
                                               effects analyses presented in the                       discussion of stream functions that                   whether the compensatory mitigation
                                               Headquarters decision documents                         would be lost from potential NWP                      project is meeting its objectives and is
                                               reflect these national-scale evaluations                activities and whether compensatory                   successfully meeting its ecological
                                               and conclusions supporting the                          mitigation can replace those functions.               performance standards. The district
                                               promulgation of the NWP from Corps                         Compensatory mitigation can be an                  engineer will review monitoring reports,
                                               Headquarters.                                           effective means of offsetting losses of               and if the compensatory mitigation
                                                  Second, division and district                        aquatic resource functions caused by                  project is not meeting its ecological
                                               engineers monitor the use of the NWPs                   activities authorized by Department of                performance standards, he or she will
                                               on a regional level, and will modify,                   the Army permits, including NWP 21                    require the responsible party to identify
                                               suspend, or revoke applicable NWPs                      activities, if it is thoughtfully planned,            and implement adaptive management
                                               when necessary if the use of those                      implemented, and monitored.                           measures to make changes to provide a
                                               NWPs is likely to result in more than                   Compensatory mitigation projects must                 successful mitigation project. If adaptive
                                               minimal individual and cumulative                       be carefully sited, planned, and                      management is not likely to result in an
                                               adverse effects on the aquatic                          designed to be ecologically successful in             ecologically successful compensatory
                                               environment within a particular                         providing stream or wetland functions.                mitigation project that will be sufficient
                                               watershed, ecoregion, state, county, or                 Site selection is a critical step in                  for offsetting lost aquatic resource
                                               other appropriate geographic area. To                   developing and implementing an
                                                                                                                                                             functions that result from the permitted
                                               address regional and site-specific                      ecologically successful compensatory
                                                                                                                                                             activity, alternative compensatory
                                               environmental considerations, we rely                   mitigation project. With the
                                               on the Corps district offices that receive                                                                    mitigation may be required. Financial
                                                                                                       promulgation of 33 CFR part 332 on
                                               pre-construction notifications required                                                                       assurances may also be required to help
                                                                                                       April 10, 2008 (73 FR 19594), the Corps
                                               by the terms and conditions of the NWP                                                                        ensure the success of the required
                                                                                                       Regulatory Program adopted
                                               to evaluate the relevant regional and                                                                         compensatory mitigation.
                                                                                                       requirements and standards to improve
                                               site-specific environmental                             compensatory mitigation practices for                   The 404(b)(1) Guidelines, which
                                               considerations. The Corps district may                  offsetting losses of aquatic resource                 address habitat development and
                                               add conditions to the NWP                               functions. Under the 2008 rule, a                     restoration as a means of minimizing
                                               authorization, including compensatory                   watershed approach should be used for                 adverse effects to plant and animal
                                               mitigation requirements, to ensure that                 establishing compensatory mitigation                  populations (40 CFR 230.75(d)),
                                               the individual and cumulative adverse                   requirements that will successfully                   recommend the use of techniques that
                                               effects on the aquatic environment                      provide aquatic resource functions to                 have been demonstrated to be effective.
                                               caused by the NWP activity are                          offset losses of those functions caused               That provision is consistent with the
                                               minimal, and therefore qualify for NWP                  by permitted activities.                              section on difficult-to-replace resources
                                               authorization. If conditions cannot be                     The 2008 rule identifies streams as                (33 CFR 332.3(e)(3)/40 CFR
                                               added to the NWP authorization to                       ‘‘difficult-to-replace’’ resources and                230.93(e)(3)), which states that
                                               ensure that minimal individual and                      states that if further avoidance and                  rehabilitation, enhancement, and
                                               cumulative adverse effects on the                       minimization of stream impacts is not                 preservation should be used to provide
                                               aquatic environment occur, the district                 practicable, the required compensatory                the required compensatory mitigation to
                                               engineer will exercise discretionary                    mitigation should be provided through                 offset permitted impacts to such
                                               authority and notify the applicant that                 stream rehabilitation, enhancement, or                resources because there is greater
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                                               an individual permit is required.                       preservation since those techniques                   certainty that such stream rehabilitation,
                                                  One commenter said there is                          have a greater certainty of success (see              enhancement, and preservation will be
                                               insufficient support for the Corps                      33 CFR 332.3(e)(3)). The preamble to the              ecologically successful and offset those
                                               position that the required compensatory                 2008 rule includes a detailed discussion              permitted impacts. The decision
                                               mitigation will attenuate cumulative                    of the scientific status of stream                    document for this NWP contains a
                                               impacts on the Nation’s aquatic                         restoration and concludes that there has              general discussion of the functions
                                               resources by providing aquatic resource                 been success with stream rehabilitation,              provided by streams, as well as general


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                                               10208                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               citations supporting our position that                  the provisions of the 404(b)(1)                       and adjacent areas’’ and that will
                                               stream rehabilitation and enhancement                   Guidelines holistically, and assessing                ‘‘prevent material damage to the
                                               can provide stream functions to offset                  the effects of the proposed discharge of              hydrologic balance outside the permit
                                               functions lost as a result of permitted                 pollutants on human health and                        area.’’ As part of the SMCRA permitting
                                               activities. It is not necessary for the                 welfare; aquatic life and wildlife;                   process, potential changes to the quality
                                               decision document to provide a                          aquatic ecosystem diversity,                          and quantity of surface and groundwater
                                               comprehensive analysis of the state of                  productivity, and stability; and                      are evaluated to ensure that material
                                               stream restoration success. The                         recreational, aesthetic, and economic                 damage to the hydrologic balance
                                               approach discussed above, and in 33                     values. For activities authorized by                  outside the permit area will not occur.
                                               CFR part 332, is consistent with the                    general permits, the evaluation of                    Other factors considered under SMCRA
                                               Council on Environmental Quality’s                      alternatives in accordance with 40 CFR                include: pre- and post-mining land uses,
                                               January 14, 2011, guidance on the                       230.10(a) does not directly apply (see 40             backfilling and grading activities,
                                               ‘‘Appropriate Use of Mitigation and                     CFR 230.7(b)(1)). Paragraph (a) of                    disposal of excess spoil, and the
                                               Monitoring and Clarifying the                           general condition 23, mitigation,                     protection or replacement of water
                                               Appropriate Use of Mitigated Findings                   requires project proponents to design                 supplies.
                                               of No Significant Impact.’’ That                        and construct NWP activities to avoid                    Under Section 404 of the Clean Water
                                               guidance advocates the use of adaptive                  and minimize adverse effects to the                   Act, the 404(b)(1) Guidelines provide
                                               management to take corrective actions if                aquatic environment to the maximum                    the substantive criteria for evaluating
                                               the required mitigation fails to achieve                extent practicable on the project site.               the environmental effects of proposed
                                               projected environmental outcomes,                          Several commenters stated that                     discharges of dredged or fill material
                                               which is also required by the Corps                     surface coal mines are already heavily                into waters of the United States. The
                                               compensatory mitigation regulations in                  regulated under SMCRA, which                          404(b)(1) Guidelines are not focused on
                                               33 CFR part 332.                                        includes a variety of requirements to                 considering effects to water quality and
                                                  One commenter said that the Corps                    protect waters of the United States, so               quantity. The 404(b)(1) Guidelines also
                                               has failed to analyze whether surface                   additional requirements are not needed                require examination of the effects that
                                               coal mining activities authorized by                    to ensure that adverse effects to the                 discharges of dredged or fill material
                                               NWP 21 will cause significant                           aquatic environment are minimal. Two                  will have on physical, chemical, and
                                               degradation to ‘‘special aquatic sites,’’               of these commenters stated NWP 21                     biological attributes of waters of the
                                               such as riffle and pool complexes. This                 should be reissued without change                     United States. The 404(b)(1) Guidelines
                                               commenter asserted that valley fills and                because of SMCRA requirements. One                    at 40 CFR part 230 require the Corps to
                                               mining through streams frequently                       commenter said the authority to                       evaluate the effects of discharges of
                                               buries riffle and pool complexes, and                   authorize stream and wetland impacts                  dredged or fill material, including
                                               these special aquatic sites are protected               caused by mining activities should rest               general permits that authorize such
                                               by stringent restrictions on discharges of              solely with the SMCRA regulatory                      discharges, on the applicable criteria
                                               fill material into such sites. The                      authority.                                            listed in subparts C through F. Examples
                                               commenter also stated that practicable                     There is often more than one Federal               of criteria in those subparts are:
                                               alternatives that do not involve burying                law that regulates surface coal mining                Substrate; suspended particulates/
                                               riffles and pools are presumed to be                    activities, especially in cases where                 turbidity; water; current patterns and
                                               available unless clearly demonstrated                   those activities involve discharges of                water circulation; normal water
                                               otherwise and such alternatives are                     dredged or fill material into waters of               fluctuations; threatened and endangered
                                               presumed to have less adverse impacts                   the United States. While most aspects of              species; fish, crustaceans, mollusks, and
                                               on the aquatic ecosystem. This                          surface coal mining are regulated under               other aquatic organisms in the food web;
                                               commenter said the Corps should deny                    SMCRA, surface coal mining and                        other wildlife; wetlands; riffle and pool
                                               a permit if it lacks sufficient information             reclamation activities involving                      complexes; municipal and private water
                                               to determine whether the proposed                       discharges of dredged or fill material                supplies; recreational and commercial
                                               discharge complies with the Guidelines.                 into waters of the United States also                 fisheries; water-related recreation; and
                                                  The activities authorized by this NWP                require permits issued under Section                  aesthetics. The threshold for issuance of
                                               comply with the 404(b)(1) Guidelines,                   404 of the Clean Water Act. The                       general permits such as NWP 21 is a
                                               even though it authorizes discharges of                 statutory and regulatory standards                    determination that the authorized
                                               dredged or fill material into waters of                 established under SMCRA are different                 activities would result in no more than
                                               the United States that may be classified                than those established under Section                  minimal individual or cumulative
                                               as special aquatic sites such as riffle and             404 of the Clean Water Act, including                 adverse environmental effects.
                                               pool complexes. Each activity                           section 404(e) which authorizes the                      There is no corresponding threshold
                                               authorized by an NWP does not require                   Corps to issue general permits. One of                under SMCRA and its implementing
                                               a project-specific 404(b)(1) Guidelines                 the objectives of SMCRA is to ensure                  regulations, which do not require that
                                               analysis—that analysis is done before                   that surface coal mining activities are               permit applications be evaluated in
                                               the NWP or any other type of general                    conducted in an environmentally                       terms of the 404(b)(1) Guidelines.
                                               permit is issued (see 40 CFR 230.7). The                responsible manner and that the land                  Instead, section 507(b)(11) of SMCRA
                                               404(b)(1) Guidelines do not prohibit the                disturbed by mining is adequately                     requires that the permit applicant
                                               use of general permits to authorize                     reclaimed. One of the objectives of the               prepare a determination of the probable
                                               discharges of dredged or fill material                  Clean Water Act is to ‘‘restore and                   hydrologic consequences of the
                                               into special aquatic sites. A                           maintain the physical, chemical, and                  proposed operation with respect to the
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                                               determination of significant degradation                biological integrity of the Nation’s                  hydrologic regime and the quantity and
                                               does not focus simply on the loss of a                  waters.’’ Under the regulations                       quality of water in surface and ground
                                               special aquatic site caused by the                      implementing SMCRA, surface coal                      water systems. Section 510(b)(3) of
                                               discharge of dredged or fill material. It               mining and reclamation activities must                SMCRA requires that the regulatory
                                               requires a broader analysis. The process                be conducted in a manner that will                    authority use this determination and
                                               for determining whether significant                     ‘‘minimize the disturbance of the                     other available information to prepare
                                               degradation occurs consists of applying                 hydrologic balance within the permit                  an assessment of the probable


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10209

                                               cumulative impact of all anticipated                    said this approach would allow western                date allows the district engineer
                                               mining in the area on the hydrologic                    coal producers to continue their                      approximately 45 days for review of the
                                               balance. The SMCRA regulatory                           operations without negative                           letter before the expiration of the one-
                                               authority may not issue a permit unless                 consequences.                                         year period that is allowed for
                                               it first finds that the operation has been                 We acknowledge that reissuing NWP                  completion of activities authorized
                                               designed to prevent material damage to                  21 with a 1⁄2-acre limit, a 300 linear foot           under the 2007 NWP 21. Any changes
                                               the hydrologic balance outside the                      limit for the loss of stream bed, and not             to the previously authorized surface
                                               permit area. While there is some                        authorizing discharges of dredged or fill             coal mining activity must also be
                                               overlap, the thresholds for permit                      material into waters of the United States             described in that letter, so that the
                                               issuance under SMCRA are not the same                   to construct valley fills, will result in             district engineer can determine whether
                                               as the thresholds under Section 404 of                  more surface coal mining activities                   the activity still results in minimal
                                               the Clean Water Act. Given the different                requiring Clean Water Act Section 404                 individual and cumulative adverse
                                               permit issuance thresholds of SMCRA                     individual permits. To provide an                     effects on the aquatic environment and
                                               and Section 404 of the Clean Water Act,                 equitable and less burdensome                         is eligible for authorization under
                                               NWP 21 authorizations cannot only rely                  transition to the new limits to NWP 21,               paragraph (a) of NWP 21. The district
                                               on the environmental reviews                            under paragraph (a) NWP 21 continues                  engineer will review such requests and
                                               conducted under SMCRA to satisfy the                    to authorize surface coal mining                      notify the permittee whether the activity
                                               minimal effects requirement.                            activities that were previously                       is authorized by the 2012 NWP 21.
                                                  Section 404 of the Clean Water Act                   authorized under the 2007 NWP 21                      There will be no agency coordination of
                                               applies to all discharges of dredged or                 without those new limits. Under                       these previously authorized NWP 21
                                               fill material into waters of the United                 paragraph (b), the 1⁄2-acre and 300 linear
                                                                                                                                                             activities. Any currently applicable
                                               States, unless those activities qualify for             foot limits, as well as the prohibition
                                                                                                                                                             regional conditions and any activity-
                                               an exemption under Section 404(f) of                    against authorizing discharges of
                                                                                                                                                             specific conditions, such as
                                               the Clean Water Act. Section 404(f) does                dredged or fill material into waters of
                                                                                                                                                             compensatory mitigation requirements,
                                               not specifically exempt surface coal                    the United States to construct valley
                                                                                                                                                             would apply to the NWP authorization.
                                               mining activities. For those activities                 fills, apply to surface coal mining
                                                                                                                                                             The district engineer may also revise
                                               that do not qualify for an exemption                    activities that were not authorized by
                                                                                                                                                             such conditions and requirements if the
                                               from the permit requirements of the                     the 2007 NWP 21. Expansions of
                                                                                                                                                             existing ones are determined not to be
                                               CWA, the Corps must evaluate                            activities that were previously verified
                                               applications for Department of the Army                 under the 2007 NWP 21 do not qualify                  adequate to ensure minimal adverse
                                               permits, including general permits, and                 for paragraph (a) of NWP 21.                          effects. If the permittee does not receive
                                               either apply the 404(b)(1) Guidelines (if                  Continuing to authorize surface coal               a written verification from the district
                                               an individual permit is required) or                    mining activities that were verified                  engineer prior to the expiration of the
                                               determine whether the proposed                          under the 2007 NWP 21 will reduce                     one-year period provided in 33 CFR
                                               activity qualifies for NWP authorization.               burdens on the regulated public while                 330.6(b), the permittee must cease all
                                               This NWP provides an efficient means                    protecting the aquatic environment in                 activities until such verification is
                                               of authorizing discharges of dredged or                 accordance with the requirements of                   received because that one-year period
                                               fill material into waters of the United                 Section 404(e) of the Clean Water Act.                cannot be extended. The surface coal
                                               States that result in minimal individual                These project proponents who received                 mine activity must be authorized under
                                               and cumulative adverse effects on the                   verifications under the 2007 NWP 21                   the 2012 NWP 21 or another form of
                                               aquatic environment. Corps districts                    expended substantial resources to                     Department of the Army authorization
                                               work with SMCRA regulatory                              obtain their authorizations. If they                  to discharge dredged or fill material into
                                               authorities to reduce duplication, but                  cannot comply with the new limits                     waters of the United States after the one-
                                               each agency must still ensure that                      imposed on NWP 21 it would impose a                   year period ends on March 18, 2013.
                                               proposed activities comply with their                   significant hardship to require those                 The district engineer may also extend
                                               respective statutes and implementing                    operators to cease surface coal mining                the February 1, 2013, deadline by
                                               regulations.                                            activities in waters of the United States             notifying the permittee in writing, if he
                                                  Two commenters stated the primary                    while they apply for individual permits               or she needs less than 45 days to make
                                               effect of adopting any of the three                     and wait for a decision. We estimate                  a decision on the 2012 NWP 21
                                               options proposed for NWP 21 in the                      that there are approximately 70 surface               authorization. The Corps encourages
                                               February 16, 2011, Federal Register                     coal mining activities across the country             operators who received a 2007 NWP 21
                                               notice would be to require proposed                     that were authorized by the 2007 NWP                  verification and plan to operate past
                                               surface coal mining activities involving                21 that may qualify for authorization                 March 18, 2013, to submit their letter as
                                               discharges of dredged or fill material                  under paragraph (a) of NWP 21 when it                 soon as possible to allow for
                                               into waters of the United States to be                  goes into effect on March 19, 2012. To                uninterrupted NWP 21 permit coverage.
                                               evaluated under the individual permit                   obtain authorization under paragraph (a)              Expansions of previously verified NWP
                                               process. This would cause an                            of the 2012 NWP 21, these project                     21 activities that result in greater losses
                                               unnecessary additional delay and                        proponents do not need to submit a pre-               of waters of the United States are not
                                               expense to mine operators and require                   construction notification since they                  authorized under paragraph (a) will
                                               the Corps to get additional personnel                   already did so under the 2007 NWP 21                  require a different form of Department
                                               and funding to process additional                       and that notification will be on file at              of the Army authorization if they do not
                                               individual permit applications in a                     the district office. Instead, those project           qualify for authorization under
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                                               timely manner. One commenter                            proponents only need submit a letter to               paragraph (b) of NWP 21. If the surface
                                               suggested that NWP 21 should be                         the district engineer requesting                      coal mining activity involving
                                               reissued as it was in 2007, and that                    verification under the 2012 NWP 21.                   discharges of dredged or fill material
                                               regional conditions should be used in                   That letter should be sent to the district            into waters of the United States
                                               Appalachia to ensure those activities                   engineer by February 1, 2013, although                authorized under paragraph (a) cannot
                                               result in minimal adverse effects on the                that deadline may be extended in                      be completed by the time the 2012 NWP
                                               aquatic environment. This commenter                     writing by the district engineer. This                21 expires, then the project proponent


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                                               10210                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               will have to obtain an individual permit                for both NWP 21 pre-construction                      rather than seek an individual permit,
                                               or regional general permit, if the activity             notifications and individual permit                   thereby reducing impacts. These
                                               does not qualify for an applicable NWP                  applications both involve considerable                commenters said that there may be a net
                                               issued in 2017. The Corps recommends                    amounts of resources from the Corps, so               gain of wetland acreages because of
                                               that any projects that will extend                      we do not expect a significant increase               reclamation practices at surface coal
                                               beyond March 18, 2017, that do not                      in workload or processing times to                    mines.
                                               meet the new limits in NWP 21 apply                     occur through the implementation of                      Ephemeral streams are waters of the
                                               for an individual permit and allow                      Option 2 and the modifications we                     United States if they meet the definition
                                               sufficient time for the Corps to process                made to that option for the final NWP.                of ‘‘waters of the United States’’ at 33
                                               their application to allow uninterrupted                   In response to the NWP 21 proposal,                CFR part 328 and applicable guidance
                                               coverage when the new NWP 21 expires                    one commenter said the Corps was                      on Clean Water Act jurisdiction, such as
                                               in 2017.                                                attempting to decide on behalf of the                 the guidance issued in 2008 entitled
                                                  The limits added to paragraph (b) of                 United States government how much                     ‘‘Clean Water Act Jurisdiction Following
                                               NWP 21 will ensure that this NWP                        coal mining should take place, or what                the U.S. Supreme Court’s Decision in
                                               authorizes only those activities that                   scale of mining operations is                         Rapanos v. United States and Carabell
                                               have minimal adverse effects on the                     appropriate. The commenter suggested                  v. United States.’’ The NWP 21 issued
                                               aquatic environment, individually and                   that the Corps only concern should be                 in 2007 did not have any acreage or
                                               cumulatively. These limits will also                    the scale of the regulated activity and               linear foot limits, which are the primary
                                               result in more new projects needing to                  not the scale of the mining operation.                tools used to encourage avoidance and
                                               obtain individual permits. The Corps                    The commenter stated that the Corps                   minimization to qualify for NWP
                                               has the resources necessary to process                  evaluation of surface coal mining                     authorization. Except for those
                                               those individual permit applications in                 activities should be focused on impacts               previously verified 2007 NWP 21
                                               a timely manner. It is important for coal               to aquatic resources. One commenter                   activities authorized under paragraph
                                               mine operators to consider the                          said the proposed changes to NWP 21                   (a), the NWP 21 reissued today has a 1⁄2-
                                               advantages of obtaining individual                      would have a significant effect on                    acre limit and a 300-linear foot limit for
                                               permits for surface coal mining                         energy supply, since the ability to                   losses of stream bed, which will be more
                                               activities. In accordance with Section                  obtain permits in a timely manner is                  effective in encouraging project
                                               404(e) of the Clean Water Act, general                  essential to the production of coal,                  proponents to avoid and minimize
                                               permits, including NWPs, can be issued                  which provides over 30 percent of                     losses of waters of the United States to
                                               for a period of no more than five years.                America’s electric power.                             quality for NWP 21 authorization. We
                                               Individual permits can be issued for                       The three options provided in the                  acknowledge that there may be net gains
                                               longer periods of time—the expiration                   February 16, 2011, Federal Register                   in wetland acreage at some surface coal
                                               date for an individual permit is at the                 notice were intended to solicit comment               mining reclamation sites, but we have
                                               discretion of the district engineer, who                to assist the Corps in identifying an                 imposed limits on NWP 21 because of
                                               will take into account the characteristics              option for the reissuance of NWP 21 that              concerns about losses of stream bed and
                                               of the proposed activity and the amount                 would comply with the statutory and                   the potential for surface coal mining
                                               of time expected to be needed to                        regulatory requirements for general                   activities to have more than minimal
                                               complete the regulated activities.                      permits. Those options were developed                 adverse effects on the aquatic
                                               Therefore, it would often be                            to determine which terms and                          environment, individually and
                                               advantageous for a surface coal mine                    conditions (if any) should be established             cumulatively.
                                               operator to obtain an individual permit                 to ensure that NWP 21 authorizes only                    One commenter disagreed with the
                                               that would authorize discharges of                      those activities that result in minimal               Corps assertion that valley fills
                                               dredged or fill material into waters of                 adverse effects on the aquatic                        substantially alter watersheds and result
                                               the United States for the expected                      environment. The proposal does not                    in adverse impacts on the aquatic
                                               operational timeframe for that particular               affect how much coal mining may take                  environment. This commenter also said
                                               coal mine. Under NWP 21, no                             place, nor does it have a significant                 that Options 2 and 3 do not allow the
                                               authorization could be issued for a time                effect on energy supply, because those                Corps the flexibility to increase the
                                               period of more than five years. If the                  surface coal mining activities that do                amount of stream bed loss above the 300
                                               NWP 21 activity is not completed by the                 not qualify for NWP 21 authorization                  linear foot limit. The commenter also
                                               expiration date of the NWP                              may be authorized by individual                       objected to the proposed interagency
                                               authorization then the project                          permits or general permits, if such                   coordination for activities resulting in a
                                               proponent would have to notify the                      general permits are available. The Corps              loss of greater than 1,000 linear feet of
                                               district engineer and obtain another                    review is focused on adverse effects to               intermittent and ephemeral stream beds,
                                               NWP verification.                                       aquatic resources, as well as other                   and said the Corps has not suggested
                                                  Nationwide permit NWP 21 pre-                        public interest review factors. The limits            any reasons for this restrictive
                                               construction notifications require                      on the use of NWP 21 are expressed in                 provision.
                                               substantial resources to evaluate                       terms of impacts to the aquatic                          Surface coal mining activities
                                               proposed activities and determine                       environment, not the scale of the mining              involving the construction of valley fills
                                               whether they result in minimal                          operation. Other aspects of surface coal              result in substantial changes to the
                                               individual and cumulative adverse                       mining activities are regulated by                    watersheds of the headwater streams
                                               effects on the aquatic environment, and                 OSMRE or delegated states under                       that are primarily impacted by these
                                               whether compensatory mitigation is                      SMCRA.                                                activities. Those watersheds are
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                                               needed to comply with the minimal                          One commenter said that NWP 21                     changed by the large amounts of land
                                               adverse environmental effects                           should not apply to ephemeral waters                  clearing and earthmoving that occur
                                               requirement for general permits. Under                  because they are not jurisdictional                   during the mining activity. The
                                               the 2007 NWP 21, the project proponent                  waters of the United States. Several                  construction of the valley fill itself
                                               could not proceed until he or she                       commenters stated that NWP 21                         causes changes to the geomorphology of
                                               obtained an NWP 21 verification. The                    encourages operators to design their                  the watershed, which affects water
                                               substantial amount of review required                   projects within the scope of the NWP                  quality and watershed hydrologic


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10211

                                               functions, such as water collection,                       One commenter said the proposed                    including the 1⁄2-acre and 300 linear foot
                                               transport, and storage. It is well                      changes to NWP 21 will actually                       limits, are necessary to ensure that this
                                               documented in the scientific literature                 increase impacts because mining                       NWP authorizes only those activities
                                               that changes in land use affect the                     operators will need to increase the size              that have minimal individual and
                                               quantity and quality of streams,                        of their mining sites to make the                     cumulative adverse effects on the
                                               wetlands, and other aquatic resources.                  individual permit process cost effective.             aquatic environment. If the construction
                                               Examples of such scientific studies are                 The commenter said operators will no                  of larger sediment ponds does not
                                               cited in the decision document for this                 longer be able to afford to mine the                  qualify for NWP 21 authorization,
                                               NWP. The 300 linear foot limit for                      smaller reserve areas, so larger mine                 activities may be authorized by
                                               losses of stream bed is generally                       areas would need to be permitted.                     individual permits or applicable
                                               necessary to ensure that NWP 21                            The changes to NWP 21 are                          regional general permits. In the
                                               authorizes only those activities that                   appropriate to help ensure that this                  definition of ‘‘loss of waters of the
                                               result in minimal adverse effects on the                NWP complies with the statutory                       United States’’ the loss of stream bed is
                                               aquatic environment. However, that 300                  requirements for general permits, in that             determined by the amount of linear feet
                                               linear foot limit may be waived by the                  it may only authorize activities that                 of stream bed that is filled or excavated.
                                               district engineer if the proposed activity              have minimal individual and                           As to whether sediment ponds would
                                               involves filling or excavating                          cumulative adverse environmental                      have to be removed upon completion of
                                               intermittent or ephemeral stream beds                   effects. Surface coal mining activities               the mining operation, that would be a
                                               and the district engineer determines, in                involving discharges of dredged or fill               case-specific determination made by the
                                               writing, that that activity will result in              material into waters of the United States             district engineer after taking into
                                               minimal individual and cumulative                       that do not qualify for NWP                           account requirements of the SMCRA
                                               adverse effects on the aquatic                          authorization will be evaluated as                    authority.
                                               environment. Agency coordination for                    individual permits if applicable regional               One commenter asked how many
                                               proposed losses of greater than 300                     general permits are not available.                    surface coal mining activities may be
                                               linear feet of intermittent or ephemeral                Activities authorized by individual                   authorized each year with NWP 21 if
                                               stream bed is intended to provide                       permits must comply with the 404(b)(1)                Option 2 is selected. One commenter
                                               information that will assist the district               Guidelines and undergo an alternatives                said the proposed changes to NWP 21
                                               engineer in making his or her minimal                   analysis. A public interest review will               would be costly to small businesses and
                                               adverse effects determination.                          also be conducted during the individual               disagreed with the Corps statement that
                                                  One commenter said all Corps                         permit review process. Mining                         the revised NWPs will not impose
                                               divisions and districts should add                      companies will have to make their own                 substantially higher costs on small
                                               regional modification alternatives to                   decisions on whether it is economically               entities than those of existing permits.
                                               address differences in aquatic resources                viable to mine smaller reserve areas, and             Another commenter indicated that the
                                               functions. This commenter also stated                   apply for Department of the Army                      proposed changes to NWP 21 would
                                               that the proposal provides that the                     authorization if proposed activities                  result in more environmental impact
                                               cumulative impact analysis for an NWP                   involve discharges of dredged or fill                 statements being required because of the
                                               21 is not limited to assessing impacts of               material into waters of the United                    amount of wetlands in their area.
                                               the use of the NWP 21 on a national                     States.                                                 In section 6.2.2 of the decision
                                               basis and is not limited to activities                     One commenter said that if Option 2                document for this NWP, we provide
                                               authorized by NWPs or other                             is adopted, it should include a                       estimates of the number of times we
                                               Department of Army permits. The                         definition of valley fill. A commenter                predict NWP 21 will be used each year.
                                               commenter acknowledged that the                         stated that the utility of NWP 21 would               Under paragraph (b), we estimate that
                                               Corps considers activities not regulated                be substantially reduced because losses               NWP 21 will be used approximately 11
                                               by the Corps, including private actions                 of waters of the United States caused by              times per year, although more activities
                                               and those resulting in changes in the                   the construction of attendant features                may qualify for NWP 21 authorization if
                                               use of uplands next to or near wetlands,                such as ponds and roads would be                      project proponents do additional
                                               streams, or other aquatic resources                     counted towards the 1⁄2-acre and 300                  avoidance and minimization to reduce
                                               during the cumulative effects analysis.                 linear foot limits. Another commenter                 losses of waters of the United States to
                                                  It is at the division engineer’s                     indicated that the 1⁄2-acre limit would               satisfy the acreage and linear foot limits.
                                               discretion whether to add regional                      only authorize small sediment ponds.                  As discussed above, we estimate that,
                                               conditions to an NWP to ensure that the                 This commenter stated that small                      across the country, approximately 70
                                               NWP authorizes only those activities                    sediment ponds would not be able to                   NWP 21 activities verified under the
                                               that have minimal individual and                        effectively service a typical mine site.              2007 NWP 21 might be re-verified under
                                               cumulative adverse effects on the                       One commenter requested clarification                 paragraph (a) of the 2012 NWP 21. The
                                               aquatic environment. In addition,                       on whether the amount of stream that is               estimate provided in the decision
                                               district engineers may modify NWP                       impounded for sediment ponds will be                  document was based on an analysis of
                                               authorizations by adding activity-                      counted as a loss of waters of the United             past use of NWP 21, and it is a rough
                                               specific conditions to minimize adverse                 States and whether these ponds will                   estimate because NWP 21 did not have
                                               environmental effects. The decision                     have to be removed upon completion of                 an acreage or linear foot limit and we
                                               documents comply with the two                           the mining.                                           cannot predict how many activities can
                                               relevant approaches for conducting                         We have added a definition of the                  be modified to comply with the new
                                               cumulative effects analyses: (1) The                    term ‘‘valley fill’’ to the text of this              limits. Therefore, it is difficult to
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                                               approach provided in the Council on                     NWP. While fewer surface coal mining                  accurately predict how often project
                                               Environmental Quality’s definition of                   activities involving discharges of                    proponents will qualify for
                                               ‘‘cumulative impact’’ provided in their                 dredged or fill material into waters of               authorization under the NWP 21 issued
                                               National Environmental Policy Act                       the United States would be authorized                 today. Since fewer surface coal mining
                                               regulations at 40 CFR 1508.7, and (2) the               by NWP 21 when compared to previous                   activities are likely to qualify for NWP
                                               approach indicated in the 404(b)(1)                     issued versions of this NWP, the new                  21 authorization, and more will require
                                               Guidelines at 40 CFR 230.7(b).                          terms and conditions of this NWP,                     individual permits, we acknowledge


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                                               10212                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               that there will be greater compliance                   individual and cumulative adverse                     NWPs) authorize categories of activities
                                               costs for small businesses. In the                      effects on the aquatic environment and                that are similar in nature and result only
                                               preamble to the proposal, where we                      is issued by Corps Headquarters. There                in minimal individual and cumulative
                                               discuss compliance with the Regulatory                  must be a national decision document                  adverse environmental effects. The
                                               Flexibility Act, we state that the                      for each NWP, and to issue that NWP,                  Corps complied with Section 2 of
                                               proposed NWPs would not result in a                     there must be a finding that the NWP                  Executive Order 13563 by seeking
                                               significant impact on a substantial                     will authorize only those activities that             public comment on the proposal to
                                               number of small entities. That statement                have minimal individual and                           reissue NWP 21 with modifications, for
                                               was made in the context of considering                  cumulative adverse effects on the                     a 60-day comment period. The Corps
                                               all of the 48 NWPs proposed to be                       aquatic environment. Division and                     has determined that the changes to NWP
                                               reissued and the two proposed new                       districts prepare supplemental decision               21 are necessary to comply with the
                                               NWPs. Some NWPs, such as NWP 48,                        documents to explain whether regional                 requirements of Section 404(e) of the
                                               will require fewer pre-construction                     conditions are needed to satisfy the                  Clean Water Act. We have modified
                                               notifications and other requirements on                 minimal adverse effects requirement.                  Option 2 by authorizing activities
                                               small entities while other NWPs, such                   Regional conditions are added to an                   verified under the 2007 NWP 21 (see
                                               as NWP 21, will have more stringent                     NWP at a division engineer’s discretion               paragraph (a) of NWP 21), to provide an
                                               requirements to satisfy the minimal                     and Corps Headquarters cannot mandate                 equitable transition to the new limits in
                                               adverse environmental effects standard                  the adoption of regional conditions.                  NWP 21 and reduce burdens on the
                                               and will authorize fewer activities. We                    The national decision documents                    regulated public. The authority for the
                                               do not agree that these changes to NWP                  acknowledge that regional conditions                  district engineer to waive the linear foot
                                               21 will result in significantly more                    approved by division engineers and                    limit for losses of intermittent and
                                               environmental impact statements. The                    activity-specific conditions added to                 ephemeral streams if the impacts are not
                                               threshold for NWP authorization, as                     NWP authorizations are procedures to                  more than minimal is also intended to
                                               well as for other general permits, is                   be relied upon to satisfy the minimal                 minimize regulatory burden. As
                                               minimal adverse environmental effects.                  adverse environmental effects                         discussed earlier in this section, the
                                               The threshold for preparing an                          requirement. In those areas of the                    terms and conditions of NWP 21 are not
                                               environmental impact statement is that                  country where surface coal mining                     duplicative with the requirements of
                                               the activity constitutes a major Federal                activities result in minimal individual               other Federal agencies. While surface
                                               action significantly affecting the quality              and cumulative adverse effects on the                 coal mining activities are more broadly
                                               of the human environment. Since the                     aquatic environment but exceed the                    regulated under the Surface Mining
                                               threshold that triggers the requirement                 limits of NWP 21, division and district               Control and Reclamation Act by the
                                               to prepare an environmental impact                      engineers may issue regional general                  Office of Surface Mining Reclamation
                                               statement is greater than the minimal                   permits that have different terms and                 and Enforcement or approved states, the
                                               adverse environmental effects threshold                 conditions than NWP 21, including                     Corps regulates discharges of dredged or
                                               for NWP activities, activities that were                larger acreage or linear foot limits.                 fill material into waters of the United
                                               previously authorized by NWP should                     Those regional general permits are a                  States, and focuses its evaluation on the
                                               generally not require an environmental                  more appropriate mechanism for                        effects those discharges have on the
                                               impact statement if they are instead                    considering local geologic, topographic,              aquatic environment or its other public
                                               evaluated through the individual permit                 climatologic, and ecological                          interest review factors (see 33 CFR
                                               process. Environmental assessments                      characteristics.
                                                                                                                                                             330.1(d) and (e)(2)). Those activities that
                                               should suffice to provide National                         Some commenters stated that
                                                                                                                                                             do not qualify for NWP authorization
                                               Environmental Policy Act compliance                     Executive Order 13563, ‘‘Improving
                                                                                                       Regulation and Regulatory Review’’ asks               may be authorized by other forms of
                                               for most, if not all, of those activities. If                                                                 Department of the Army authorization,
                                               the adverse effects on the aquatic                      federal agencies to tailor regulations to
                                                                                                       impose the least burden on society,                   such as individual permits or regional
                                               environment for a proposed NWP                                                                                general permits. The standards the
                                               activity are determined by the district                 including individuals, businesses of
                                                                                                       differing sizes, and other entities. These            Corps uses to ensure compliance with
                                               engineer to be more than minimal
                                                                                                       commenters said that adding additional                the Clean Water Act differ from the
                                               individually and cumulatively, then
                                                                                                       redundant review by Federal agencies                  standards used by the Office of Surface
                                               discretionary authority should be
                                                                                                       violates this Executive Order and                     Mining Reclamation and Enforcement or
                                               exercised and the proposed activity
                                                                                                       threatens energy supplies. One of these               approved states to ensure compliance
                                               evaluated through the individual permit
                                                                                                       commenters said the proposal to reissue               with the Surface Mining Control and
                                               process.
                                                  Many commenters said that that it                    NWP 21 with modifications is contrary                 Reclamation Act, and those standards
                                               would be more appropriate to establish                  to the objectives of Executive Order                  are not redundant.
                                               different NWP terms and conditions for                  13563 because it fails to use the best,                  A commenter disagreed with the
                                               different areas of the United States,                   most innovative and least burdensome                  Corps statement that the proposed
                                               because of vast differences in geological,              tools for achieving regulatory ends and               NWPs are not a significant energy action
                                               topographical, climatologically and                     that the proposed limits in NWP 21 are                as defined by Executive Order 13211
                                               ecological regimes in areas where coal                  redundant, inconsistent, or overlapping               because of the proposed changes to
                                               resources are located across the country.               with other regulations.                               NWP 21. The commenter said the Corps
                                               One of these commenters recommended                        As explicitly recognized in Executive              must prepare a Statement of Energy
                                               focusing on the use of regional                         Order 13563 itself, an Executive Order                Effects as required by the Executive
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                                               conditions to address regional                          does not supersede Federal laws, such                 Order, including a description of the
                                               differences in coal mining techniques                   as the requirements in the Clean Water                adverse impacts expected to the
                                               and issues, instead of modifying NWP                    Act, the Rivers and Harbors Act of 1899,              production of coal, the nation’s primary
                                               21.                                                     the Endangered Species Act, and the                   electrical generation fuel supply. One
                                                  An NWP is developed to authorize                     National Historic Preservation Act.                   commenter said that the time frames for
                                               specific categories of activities across                Section 404(e) of the Clean Water Act                 evaluating NWP 21 pre-construction
                                               the country that have minimal                           states that general permits (including                notifications should be similar to those


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10213

                                               of other NWPS, and NWP 21 should not                    investments in reliance on a previously               compliance with the requirements for
                                               require the project proponent to wait                   verified NWP 21 authorization.                        general permits, it is necessary for the
                                               until he or she receives a written NWP                     One commenter said that a pre-                     Office of the Chief of Engineers to
                                               verification even if the 45-day review                  construction notification should be                   review and approve agency categorical
                                               period has passed.                                      required for all NWP 21 activities, so                exclusions for use with this NWP. In
                                                  The changes to NWP 21 are                            plans and permit conditions could be                  cases where the Federal agency is
                                               appropriate and help to ensure that the                 reviewed to ensure that contaminated                  responsible for compliance with the
                                               NWP authorizes only those discharges                    water being generated during these                    National Historic Preservation Act, the
                                               of dredged or fill materials into waters                activities is not later reaching open                 Endangered Species Act, or other
                                               of the United States that have minimal                  water and impacting state-owned lands.                Federal laws, the Corps can accept their
                                               adverse effects on the aquatic                          One commenter expressed concern that                  compliance, as long as it adequately
                                               environment, individually and                           historic resources impacts are not                    covers the activity authorized by the
                                               cumulatively. Surface coal mining                       considered under SMCRA in cases                       NWP. The same principle applies for
                                               activities that involve discharges of                   where the program has been delegated                  Tribal treaty natural or cultural
                                               dredged or fill material into waters of                 to states.                                            resources: If the agency issuing the
                                               the United States that do not qualify for                  To be authorized by this NWP, the                  categorical exclusion that qualifies for
                                               NWP authorization may be authorized                     project proponent must submit a pre-                  NWP 23 authorization has sufficiently
                                               by individual permits or, if available,                 construction notification, so that the                addressed the Tribal treaty resources,
                                               applicable regional general permits,                    district engineer can evaluate the                    then the Corps district can accept that
                                               which would still support the                           proposed activity and ensure that it                  as a basis for compliance with general
                                               production of coal to supply the                        qualifies for NWP authorization.                      condition 17, tribal rights.
                                               nation’s energy needs. Given the                        Activities authorized by this NWP must                   One commenter stated that this NWP
                                               adverse environmental effects                           comply with general condition 20,                     authorizes activities that are not similar
                                               associated with surface coal mining                     historic properties. If the proposed                  in nature, and its use does not result in
                                                                                                       activity has the potential to cause effects           minimal adverse effects on the aquatic
                                               activities involving discharges of
                                                                                                       to historic properties, consultation                  environment. One commenter said that
                                               dredged or fill material into waters of
                                                                                                       under Section 106 of the National                     the approved categorical exclusions
                                               the United States, which are discussed
                                                                                                       Historic Preservation Act will be                     need to be reassessed to ensure that they
                                               in the decision document for this NWP,
                                                                                                       conducted before the district engineer                still meet the minimal adverse
                                               we believe it is necessary to retain the
                                                                                                       determines whether the activity is                    environmental effects requirement for
                                               existing requirement that the project
                                                                                                       authorized by NWP.                                    general permit activities. One
                                               proponent may not proceed with the                         This NWP is reissued with the                      commenter said that pre-construction
                                               NWP 21 activity until after he or she has               modifications discussed above.                        notification should be required for all
                                               obtained a written NWP 21 verification.                    NWP 22. Removal of Vessels. There                  NWP 23 activities to ensure adequate
                                               Project proponents are already                          were no changes proposed for this NWP,                interagency coordination. Another
                                               accustomed to complying with this                       and no comments were received. This                   commenter said that reporting to the
                                               requirement and plan accordingly.                       NWP is reissued without change.                       Corps should be required for any
                                                  One commenter suggested                                 NWP 23. Approved Categorical                       activity that affects wetlands,
                                               establishing a grandfathering period for                Exclusions. There were no changes                     encroaches on a regulatory floodway,
                                               surface coal mining activities authorized               proposed for this NWP. One commenter                  affects the water level of a 100-year
                                               by the NWP 21 issued in 2007, to allow                  requested that this NWP be limited to                 flood event, or affects waters designated
                                               permittees to complete their currently                  federal applicants only. One commenter                as critical resource waters.
                                               approved mitigation plans without an                    requested that the NWP be modified to                    This NWP, along with the Regulatory
                                               added burden of updating permits.                       allow any agency with categorical                     Guidance Letter listing the approved
                                               Another commenter asked how project                     exclusions to use this NWP, not just                  categorical exclusions, authorizes
                                               proponents are expected to transition                   those that have been approved by the                  activities that are similar in nature. The
                                               from the current 2007 NWP 21 to one                     Office of the Chief of Engineers. One                 Corps believes that their eligibility for
                                               of the selected options for reissuing                   commenter recommended adding                          NEPA compliance using a categorical
                                               NWP 21, if NWP 21 is reissued under                     references to requirements to comply                  exclusion is an appropriate basis of
                                               either Option 2 or 3.                                   with other applicable federal laws, such              ‘‘similarity’’ for their authorization
                                                  As discussed above, we have revised                  as Section 106 of the National Historic               under this NWP. Based on the NEPA
                                               NWP 21 to continue the NWP                              Preservation Act. One commenter stated                requirements for use of categorical
                                               authorization for surface coal mining                   that this NWP does not take into                      exclusions, the Corps has determined
                                               activities that were verified under the                 consideration the actions that may                    that these activities will result in
                                               2007 NWP 21, to provide project                         impact Tribal treaty cultural or natural              minimal individual and cumulative
                                               proponents until March 18, 2017, to                     resources and requested that                          adverse effects on the aquatic
                                               complete those activities under NWP                     notification be provided to affected                  environment, and division engineers
                                               21. The acreage limits, linear foot limits,             tribes regardless if considered a                     have the authority to regionally
                                               and prohibition against discharges of                   categorical exclusion.                                condition this NWP to restrict or
                                               dredged or fill material into waters of                    This NWP applies only to those                     prohibit its use if they determine that
                                               the United States to construct valley                   activities ‘‘undertaken, assisted,                    these activities are resulting in more
                                               fills apply to those surface coal mining                authorized, regulated, funded or                      than minimal adverse environmental
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                                               activities that were not previously                     financed, in whole or in part, by another             effects. We do not agree that the
                                               authorized by the 2007 NWP 21. We                       Federal agency or department.’’ In                    approved categorical exclusions need to
                                               believe this approach for transitioning                 certain instances, another agency, such               be re-evaluated because of the length of
                                               to the new NWP 21 limits provides both                  as a state department of transportation,              time that has passed since they were
                                               protection to the aquatic environment                   may legally assume the responsibility                 originally approved. Agencies have an
                                               and is equitable to those members of the                for categorical exclusion determinations              on-going responsibility to review their
                                               regulated public who made substantial                   for a Federal entity. To ensure                       categorical exclusions and ensure that


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                                               10214                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               the activities they authorize still qualify             enhancement, restoration, or                          One commenter said that aquatic
                                               for this type of NEPA compliance.                       establishment agreements.                             resource restoration, establishment, and
                                               Division engineers may also regionally                     Many commenters supported the                      enhancement activities should have
                                               condition this NWP to require agency                    addition of removal of small dams to the              management plans that include goals
                                               coordination for specific categorical                   list of examples of activities authorized             and objectives, baseline conditions,
                                               exclusions that have been approved for                  by this NWP. One commenter said that                  effective monitoring requirements, and
                                               use with this NWP. We do not agree that                 if this NWP is modified to authorize the              adaptive management plans. This
                                               reporting or pre-construction                           removal of small dams, the NWP should                 commenter stated that without this level
                                               notification should be required for all                 also authorize discharges of dredged or               of documentation, the effectiveness of
                                               activities that may affect wetlands.                    fill material to re-establish appropriate             any restoration, establishment, or
                                               Activities that encroach upon regulatory                stream channel configurations, with a                 enhancement activity cannot be
                                                                                                       1⁄2-acre limit for the stream channel
                                               floodways or affect 100-year flood                                                                            effectively evaluated for success. One
                                               elevations are more appropriately                       reconfiguration. Some of these                        commenter recommended adding a
                                               addressed through applicable Federal                    commenters requested clarification as to              requirement for performance bonds to
                                               Emergency Management Agency-                            what constitutes a ‘‘small dam.’’ One                 ensure that these activities are
                                               approved state or local floodplain                      commenter agreed with the addition of                 monitored and are achieving their goals
                                               management requirements (see general                    removing small dams but expressed                     and objectives.
                                               condition 10). General condition 22,                    concern regarding potential impacts to                   For those NWP 27 activities that
                                               designated critical resource waters,                    water quality when a small dam is                     require pre-construction notification,
                                               requires pre-construction notification                  removed. One commenter
                                                                                                                                                             the prospective permittee is required to
                                               for any NWP 23 activity that is proposed                recommended requiring sediment
                                                                                                                                                             submit a complete pre-construction
                                               in designated critical resource waters                  testing before authorizing the removal of
                                                                                                                                                             notification, with the information listed
                                               and wetlands adjacent to those waters.                  small dams.
                                                                                                          After further consideration, we have               in paragraph (b) of general condition 31.
                                                  The proposed NWP is reissued with
                                                                                                       determined that since the NWP 27                      Activities conducted in accordance with
                                               no changes.
                                                  NWP 24. Indian Tribe or State                        issued in 2007 authorized the                         agreements with other Federal or state
                                               Administered Section 404 Programs.                      installation, removal, and maintenance                agencies should be adequately
                                               There were no changes proposed for this                 of small water control structures (which              documented to determine whether there
                                               NWP, and no comments were received.                     clearly includes small dams), it is not               will be net increases in aquatic resource
                                               This NWP is reissued without change.                    necessary to modify this NWP by adding                functions and services. When Corps
                                                  NWP 25. Structural Discharges. We                    the removal of small dams to the list of              districts review the reports required for
                                               did not propose any changes to this                     examples of activities authorized by                  activities conducted under agency
                                               NWP. One commenter stated that                          NWP 27, so we have not made this                      agreements, they will assess whether
                                               concrete should be cured for a full seven               proposed change. We agree that the                    those activities will satisfy the terms
                                               days before coming in contact with                      NWP should also authorize the                         and conditions of this NWP. If a
                                               water. One commenter stated structures                  restoration of the stream channel that                particular activity does not, then the
                                               constructed by such discharges on state-                were affected by the construction of a                district will notify the project proponent
                                               owned lands may require a ‘‘use                         small water control structure, if that                within 30 days of when the report was
                                               authorization’’ from the state.                         water control structure is to be removed.             submitted to the district engineer. This
                                                  Specific requirements for the curing                 We do not agree that such activities                  NWP requires authorized activities to
                                               of concrete are more appropriately                      should be limited to 1⁄2-acre, since this             result in net increases in aquatic
                                               addressed as regional conditions or                     NWP authorizes only aquatic resource                  resource functions and services, which
                                               activity-specific conditions added to an                restoration, establishment, and                       will generally add acreage to the
                                               NWP 25 authorization. Project                           enhancement activities that result in net             nation’s aquatic habitat base. Although
                                               proponents are responsible for obtaining                increases in aquatic resource functions               there may be some NWP 27 activities
                                               any other federal, state, or local permits              and services. Aquatic resource habitat                that result in a decrease in aquatic
                                               that may be required for a particular                   restoration and enhancement activities                resource area to increase the functional
                                               activity.                                               involving the removal of small water                  capacity of those aquatic habitats, such
                                                  The NWP is reissued without change.                  control structures should be designed                 changes are acceptable because it is the
                                                  NWP 27. Aquatic Habitat Restoration,                 and implemented to prevent or                         ecosystem functions, and the benefits
                                               Establishment, and Enhancement                          minimize the movement of pollutants,                  people derive from those functions, that
                                               Activities. We proposed to modify this                  including chemical compounds                          are important to society. To provide
                                               NWP by adding ‘‘the removal of small                    adsorbed to sediments that have                       better information to assess whether
                                               dams’’ to the list of examples of                       accumulated in the impoundment, from                  there will be a net increase in aquatic
                                               activities authorized by this NWP. We                   the impounded area once the small                     resource functions and services, we
                                               also proposed to remove the phrase                      water control structure is removed.                   have added a provision to the reporting
                                               ‘‘that has not been abandoned’’ that                    Sediment testing may be required on a                 requirement that requires the
                                               modifies the term ‘‘prior converted                     case-by-case basis if there are                       prospective permittee to provide
                                               cropland.’’ We proposed to change                       substantive concerns about potential                  information on the baseline ecological
                                               ‘‘Notification’’ provisions (1) and (2) so              contaminants.                                         conditions at the project site, such as a
                                               that certain stream restoration,                           Several commenters suggested that                  delineation of wetlands, streams, and/or
                                               rehabilitation, and enhancement                         NWP 27 activities be subject to strict                other aquatic habitats. Unless the
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                                               activities would be subject to the                      technical guidelines and enforceable                  activities authorized by this NWP are to
                                               reporting provision instead of requiring                success criteria commensurate with the                be used as compensatory mitigation for
                                               pre-construction notification. Lastly, we               scope of the activity being undertaken.               Department of the Army permits (e.g.,
                                               proposed to modify ‘‘Notification’’                     A number of commenters expressed                      mitigation banks or in-lieu fee projects),
                                               provision (1) by adding the U.S. Forest                 concern that some of the activities                   the project proponent is not required to
                                               Service to the list of Federal agencies                 authorized by NWP 27 may result in a                  submit mitigation plans that comply
                                               that can develop stream or wetland                      loss of waters rather than a net gain.                with 33 CFR 332.4. The aquatic resource


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10215

                                               restoration, establishment, or                          submerged aquatic vegetation or                       naturally occurring non-tidal aquatic
                                               enhancement activity should be                          emergent tidal wetlands should be                     resources. One commenter suggested
                                               sufficiently documented to help district                authorized by this NWP, as long as                    changing the conversion provision to
                                               engineers decide whether the terms and                  those shallow water habitat and wetland               state that no wetlands may be converted
                                               conditions of this NWP are satisfied.                   types previously existed in the project               to open water impoundments rather
                                               Performance bonds or other types of                     area. Such re-establishment activities                than limiting the prohibition to tidal
                                               financial assurances may be required on                 would not constitute a conversion of                  wetlands. Another commenter stated
                                               a case-by-case basis, if such assurances                tidal waters to other aquatic uses;                   that while they understand the need for
                                               are necessary to provide funding to be                  instead it would be a form of                         language to clarify that conversion from
                                               used for remediation or adaptive                        rehabilitation of those habitat types. We             ‘‘streams to wetlands’’ is not desirable,
                                               management.                                             have retained the provision authorizing               there are some areas that have been
                                                  One commenter requested that this                    mechanized land clearing to remove                    drained or ditched to create water flow
                                               NWP authorize the rehabilitation or                     non-native, invasive plant species.                   away from agricultural land, where
                                               enhancement of tidal streams, stating                      One commenter requested that the                   there was previously a wetland. This
                                               that such activities would result in net                terms ‘‘type’’ and ‘‘natural wetland’’ be             commenter asked whether
                                               increases in the functions and services                 defined in the paragraph that describes               reestablishing wetlands on the site
                                               provided by existing tidal aquatic                      the activities that are not authorized by             could be authorized by this NWP. The
                                               resources and would not be contrary to                  this NWP. Another commenter                           commenter said that the NWP is too
                                               the provision that prohibits the                        supported the provision that prohibits                restrictive and has the potential to
                                               relocation of tidal waters or the                       the conversion of natural wetlands to                 prohibit activities that may result in
                                               conversion of tidal waters to other                     another aquatic use and recommended                   aquatic resources that are more
                                               aquatic uses. One commenter pointed                     that this prohibition also be applied to              appropriately integrated into the
                                               out that NWP 27 covers a wide range of                  the conversion of one type of aquatic                 landscape.
                                               habitat restoration and enhancement                     habitat to another. One commenter said                   The relocation of non-tidal waters and
                                               activities and there should be greater                  that the NWP should clearly state that                wetlands on a project site, including
                                               flexibility to allow resource managers to               wetlands with documented hydrologic                   relocation activities that convert open
                                               plan for sea level rise. This commenter                 alterations are not ‘‘natural’’ wetlands              water impoundments to non-tidal
                                               recommended adding the beneficial use                   and that hydrologic restoration of these              wetlands and vice versa, can result in
                                               of dredged material as a thin layer                     wetlands is not to be considered a                    net increases in aquatic resource
                                               application to provide sediment to                      conversion of a natural wetland to                    functions and services when viewed in
                                               sediment starved marshes, which may                     another ‘‘type’’ but instead it should be             a watershed context. Therefore, we do
                                               provide substrate to maintain those                     considered as wetland rehabilitation.                 not agree that it is appropriate to
                                               marshes as local sea levels rise. One                   One commenter stated that a provision                 exclude such activity from coverage
                                               commenter suggested modifying this                      should be added to this NWP to clarify                under this NWP if it meets all other
                                               NWP by clarifying that it authorizes                    that compensatory mitigation is not                   conditions, including a net increase in
                                               activities that involve removing or                     required for activities authorized by this            resource functions and services. Ditches
                                               modifying existing drainage ditches and                 NWP since they must result in net                     that were constructed in wetlands to
                                               structures, to establish or re-establish                increases in aquatic resource functions               drain those wetlands are not considered
                                               wetland or stream hydrology. Another                    and services.                                         streams for the purposes of this
                                               commenter suggested adding the re-                         As indicated by the parenthetical in               provision of the NWP. As discussed
                                               establishment of submerged aquatic                      the first sentence of the referenced                  earlier, this NWP authorizes the filling,
                                               vegetation or emergent tidal wetlands in                paragraph, the term ‘‘type’’ as used for              blocking, or reshaping of drainage
                                               areas where those plant communities                     the purposes of this NWP refers to the                ditches to restore wetland hydrology.
                                               previously existed. One commenter                       general category of aquatic resource,                    One commenter asked if the removal
                                               supported the inclusion of mechanized                   such as wetland or stream. We do not                  of bulkheads, derelict structures, and
                                               land clearing to remove non-native                      believe it would be appropriate to                    pilings, can be authorized by this NWP
                                               invasive species in this NWP.                           define the term ‘‘natural wetland’’                   while another suggested that the NWP
                                                  We agree that the rehabilitation or                  except to contrast it with constructed                allow for the temporary use of spat (e.g.,
                                               enhancement of tidal streams should be                  wetlands, such as those that are often                larval oysters) collecting devices for the
                                               authorized by this NWP and have                         used to treat wastewater. District                    purpose of shellfish restoration.
                                               modified the first paragraph to include                 engineer have the discretion to                          The removal of structures in navigable
                                               this category of activities. The                        determine what constitutes a ‘‘natural                waters of the United States is authorized
                                               enhancement of tidal wetlands may be                    wetland’’ for the purposes of this NWP.               by this NWP if it is a part of an aquatic
                                               accomplished by minor additions of                      We have added a sentence to this                      habitat restoration or enhancement
                                               sediment to facilitate changes in tidal                 paragraph to clarify that changes in                  activity. The temporary use of spat
                                               marsh elevation that may successfully                   wetland plant communities that are                    devices for oyster habitat restoration is
                                               track sea level rise. We agree with                     caused by restoring wetland hydrology                 more appropriately authorized by NWP
                                               providing more clarity concerning the                   are to be considered wetland                          4.
                                               types of ditch manipulations that can be                rehabilitation activities that are                       One commenter said that the
                                               used for restoring wetland hydrology                    authorized by this NWP. Such wetland                  provisions concerning shellfish seeding
                                               and have removed the phrase ‘‘and                       rehabilitation activities are not to be               are not clear and asked if the intent of
                                               drainage ditches’’ after ‘‘the backfilling              considered conversions to another                     the NWP is to authorize shellfish
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                                               of artificial channels’’ and replaced it                aquatic habitat type. We concur that                  seeding activities to enhance threatened
                                               with ‘‘such as drainage tiles, and the                  compensatory mitigation should not be                 shellfish populations. This commenter
                                               filling, blocking, or reshaping of                      required for NWP 27 activities and have               also said that shellfish enhancement
                                               drainage ditches to restore wetland                     added a sentence to the text of the NWP               activities should be limited to native
                                               hydrology’’ after ‘‘the removal of                      to clearly state this stipulation.                    species. One commenter recommended
                                               existing drainage structures.’’ We also                    One commenter said that the NWP                    authorizing shellfish restoration
                                               agree that the re-establishment of                      should prohibit the relocation of                     activities without requiring pre-


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                                               10216                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               construction notification when such                     dominated by invasive species; a 3-acre               for a substantial period of time and
                                               activities are conducted or approved by                 limit for excavation activities; and                  benefit the watershed. Nationwide
                                               a government agency with resource                       limiting the placement of fill for the                permit 27 differs from the other NWPs
                                               management oversight. One commenter                     construction of dikes, berms, or water                because of the types of activities it
                                               requested we not include shellfish                      control structures to two acres. This                 authorizes. As stated in the Note at the
                                               restoration activities in this NWP,                     commenter also recommended limiting                   end of NWP 27, reversion of an area
                                               because these activities alter existing                 impoundments to a maximum height of                   used as a compensatory mitigation
                                               substrate and benthic habitat and                       six feet, with a maximum impounded                    project is not authorized by this NWP.
                                               should be reviewed under the                            area of no more than five acres during                We do not track the acreage of wetland
                                               individual permit evaluation process.                   a design flood. This commenter also                   or stream restoration and enhancement
                                               This commenter also recommended                         said that enhancement of hydrology                    activities, or of wetland establishment
                                               imposing a one-acre limit for the                       should not be authorized unless a state               activities, that were authorized by NWP
                                               placement of scattered shell.                           agency concurs that the wetland has                   27 and might be eligible for reversion.
                                                  This NWP authorizes shellfish                        been farmed within the last five years or             There is no limit on the amount of
                                               seeding activities, which may help                      is dominated by invasive species.                     wetlands that can be reverted under a
                                               increase shellfish populations in                          Since this NWP authorizes only those               single authorization, provided all
                                               specific waters. Division engineers may                 aquatic habitat restoration,                          conditions of the NWP are met. County
                                               regionally condition this NWP to limit                  establishment, and enhancement                        soil and water conservation districts can
                                               shellfish seeding activities to native                  activities that result in net increases in            register with the U.S. Department of
                                               species. Further, in response to a pre-                 aquatic resource functions and services,              Agriculture to be a technical service
                                               construction notification or report, a                  we do not agree that the recommended                  provider.
                                               district engineer may exercise                          limits should be added to this NWP.                      One commenter said that pre-
                                               discretionary authority and condition a                 Division engineers can regionally                     construction notifications should
                                               specific NWP authorization to limit it to               condition this NWP to restrict or                     include photographs, a description of
                                               the seeding of native shellfish species.                prohibit its use over specific geographic             pre-project site conditions, and a
                                               We do not agree that there should be no                 areas or categories of waters. In response            discussion of general aquatic resource
                                               pre-construction notification                           to a pre-construction notification,                   functions and services anticipated to be
                                               requirement if there is oversight by                    district engineers can add conditions to              provided by the activity. Another
                                               another government entity with the                      the NWP authorization to ensure that                  commenter stated that pre-construction
                                               responsibility for managing shellfish                   the NWP authorizes only those activities              notification should be required for all
                                               resources. Since these activities occur in              that result in minimal adverse effects on             activities.
                                               navigable waters, the Corps needs to                    the aquatic environment.                                 Paragraph (b) of general condition 31,
                                               review them on a case-by-case basis to                     Two commenters supported the                       pre-construction notification, requires
                                               ensure that they result in minimal                      addition of the United States Forest                  prospective permittees to submit
                                               individual and cumulative adverse                       Service as a federal agency that can                  documentation that describes the
                                               effects on the aquatic environment and                  develop agreements for the restoration,               proposed activity, including the
                                               navigation and provide net increases in                 enhancement, or establishment of                      anticipated loss of waters of the United
                                               aquatic resource functions and services.                streams and wetlands. One commenter                   States and, if appropriate, sketches that
                                               Shellfish restoration activities should be              recommended removing the reversion                    help clarify the project. The pre-
                                               authorized by this NWP because                          provision of NWP 27. Another                          construction notification also must
                                               shellfish provide important ecosystem                   commenter said that the reversion                     include a delineation of wetlands, other
                                               services in aquatic ecosystems,                         provision should be eliminated or                     special aquatic sites, and other aquatic
                                               including the improvement of water                      significantly modified because it is                  habitats. We do not agree that pre-
                                               quality. In most cases, the changes to                  inconsistent with other NWPs. Two                     construction notification should be
                                               benthic habitat are minor when                          commenters stated that the reversion of               required for all activities. The reporting
                                               compared to the ecosystem services                      wetlands should not be authorized if the              requirements for those activities that do
                                               provided by the shellfish. We also do                   wetlands were being used for                          not require pre-construction notification
                                               not agree that there should be a one-acre               compensatory mitigation. One                          provide sufficient opportunity for
                                               limit for the placement of shell to                     commenter asked how many acres of                     district engineers to notify a project
                                               construct oyster habitat because larger                 wetlands could be reverted under this                 proponent if the proposed work does
                                               oyster habitat construction activities can              NWP. One commenter asked whether a                    not comply with the terms and
                                               still result in a net increase in aquatic               ‘‘USDA Technical Service Provider’’                   conditions of the NWP. We have
                                               resource functions and services.                        includes county soil and water                        modified the ‘‘Reporting’’ provision of
                                                  One commenter said that stream                       conservation districts.                               this NWP to require the permittee to
                                               restoration projects should be limited to                  The reversion provision is necessary               submit information on the baseline
                                               500 linear feet. One commenter stated                   for those aquatic resource restoration,               ecological conditions at the project site,
                                               that the construction of small nesting                  enhancement, or establishment                         such as a delineation of wetlands,
                                               islands and the alteration of rare or                   activities that are done in accordance                streams, and/or other aquatic habitats.
                                               imperiled wetlands should be not be                     with binding agreements, voluntary                    We have also changed the
                                               authorized by this NWP. This                            actions, or permits, where those                      ‘‘Notification’’ provision of this NWP by
                                               commenter also suggested acreage limits                 agreements, actions, or permits allow                 replacing the phrase ‘‘the activity’’ with
                                               for categories of activities authorized by              the project proponent to revert the                   ‘‘any activity’’ to clarify that any activity
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                                               this NWP, such as limiting excavation of                affected lands to its prior condition. If             that does not require reporting requires
                                               wetlands to provide shallow water                       the reversion provision is removed, it                a pre-construction notification. The last
                                               habitat for wildlife to 1⁄2-acre in altered             would create a disincentive to do                     sentence of this NWP has been changed
                                               wetlands; excavating no more than 11⁄2-                 certain aquatic restoration,                          to clarify that appropriate
                                               acre of wetlands that have been                         enhancement, or establishment                         documentation concerning the
                                               regularly farmed within the past five                   activities that could provide some                    agreement, voluntary action, or Surface
                                               years or wetlands documented to be                      aquatic resource functions and services               Mining Control and Reclamation Act


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                                               permit is to be provided to the district                   This NWP is reissued without change.               acre and 300 linear foot limits apply to
                                               engineer to fulfill the reporting                          NWP 29. Residential Developments.                  single and complete projects. If a project
                                               requirement.                                            We proposed to modify this NWP by                     proponent requests NWP authorization
                                                  One commenter said the NWP should                    changing the waiver provision for                     to conduct additional discharges of
                                               require the use of best management                      activities resulting in the loss of greater           dredged or fill material into waters of
                                               practices to avoid sediment loading of                  than 300 linear feet of intermittent and              the United States and modify a
                                               waters especially when mechanized                       ephemeral stream bed, to clarify that the             previously authorized single and
                                               land clearing or work is conducted in                   district engineer will only issue the                 complete residential development
                                               waters of the United States. The                        waiver after making a project-specific                project, both the previously authorized
                                               commenter stated that best management                   written determination that the activity               losses and the additional losses are
                                               practices, such as floating barriers,                   will result in minimal adverse effects.               applied to the 1⁄2-acre and/or 300 linear
                                               should also be used in upland areas to                     One commenter said that this NWP                   foot limits. If the modification to the
                                               protect downstream water quality. One                   should not be reissued. One commenter                 residential development is a separate
                                               commenter stated that Tribes should be                  suggested revoking this NWP because of                single and complete project with
                                               notified to ensure that NWP 27 activities               the large scale of these projects and                 independent utility from the previously
                                               avoid impacts to tribal treaty natural                  associated impacts to waters and said                 authorized residential development,
                                               resources and cultural resources.                       that individual permits should be                     then a separate NWP authorization may
                                                  General condition 12, soil erosion and               required for these activities. Two                    be issued. The ‘‘Definitions’’ section
                                               sediment controls, requires permittees                  commenters stated that the use of this                includes further clarification regarding
                                               to implement appropriate soil and                       NWP permit to authorize 1⁄2-acre losses               single and complete projects.
                                               erosion and sediment controls during                    of waters of the United States would                     Several commenters objected to
                                               the work. In response to a pre-                         result in more than minimal adverse                   providing district engineers with the
                                               construction notification, district                     effects on an individual and cumulative               authority to waive the 300 linear foot
                                               engineers can add conditions to the                     basis. Two commenters said that this                  limit for the loss of intermittent and
                                               NWP authorization to require more                       NWP should not authorize residential                  ephemeral stream bed on a case-by-case
                                               specific sediment and erosion controls.                 subdivisions, and should be limited to                basis after reviewing a pre-construction
                                               Division engineers can impose regional                  single family homes. Four commenters                  notification and determining that the
                                               condition on this NWP to require                        recommended decreasing the acreage                    proposed activity results in minimal
                                               notification of the appropriate Tribe or                limit for losses of waters of the United              adverse environmental effects. One
                                               Tribes if a proposed activity might affect              States to 1/4-acre. Two commenters                    commenter said that the waiver
                                               tribal treaty natural resources and                     suggested increasing the acreage limit to             provision would result in more than
                                               cultural resources. General condition                   1 acre. One commenter requested                       minimal cumulative adverse effects on a
                                               17, Tribal rights, requires that no NWP                 clarification on whether the acreage                  watershed basis. Another commenter
                                               activity or its operation impair reserved               limits are applied cumulatively when                  stated that use of the waiver would
                                               treaty rights, including treaty fishing                 there is any subsequent expansion of a                authorize the losses of large amounts of
                                               and hunting rights. Cultural resources                  residential development.                              headwater streams. A few commenters
                                               are protected through the requirements                     We do not agree that this NWP should               suggested the waiver provision should
                                               of general condition 20, historic                       not be reissued or limited to single                  be removed from this NWP. Three
                                               properties, and general condition 21,                   family homes. The construction of                     commenters recommended increasing
                                               discovery of previously unknown                         residential developments, including                   the linear foot limit for the loss of
                                               remains and artifacts.                                  multiple unit residential developments,               stream bed to 500 feet. Two commenters
                                                  This NWP is reissued with the                        may have minimal individual and                       supported the clarification that a finding
                                               modifications discussed above.                          cumulative adverse effects on the                     of minimal adverse environmental
                                                  NWP 28. Modifications of Existing                    aquatic environment, and is appropriate               effects would be required to issue a
                                               Marinas. There were no changes                          for NWP authorization if it meets the                 waiver.
                                               proposed for this NWP. Two                              conditions of this NWP. Provided the                     Responses to comments regarding the
                                               commenters recommended adding a                         limits are met, the effects to waters of              300 linear foot limit for losses of stream
                                               condition to ensure the modification                    the United States are similar whether                 bed and the waiver provision for the
                                               does not encroach upon additional                       single family homes or groups of single               loss of greater than 300 linear feet of
                                               waters. One commenter suggested                         family homes are constructed as a result              intermittent and ephemeral stream beds
                                               adding a condition to require a                         of using this NWP to authorize                        are discussed in a previous section of
                                               minimum maneuvering distance for an                     discharges of dredged or fill material                this preamble. We are retaining the 300
                                               outside slip to the boundary of the                     into waters of the United States. The 1⁄2-            linear foot limit for stream bed impacts,
                                               marina’s riparian interest area. One                    acre limit, as well as the other terms and            as well as the ability for district
                                               commenter stated that modifications for                 conditions of this NWP, is consistent                 engineers to provide written waivers of
                                               marinas on state-owned aquatic lands                    with longstanding limits on this and                  the 300 linear foot limit for losses of
                                               should require pre-construction                         other NWPs, and is appropriate for                    intermittent and ephemeral stream beds.
                                               notification.                                           ensuring that this NWP authorizes only                   One commenter recommended that
                                                  This NWP clearly states that it does                 those activities with minimal adverse                 compensatory mitigation be required for
                                               not authorize expansions of existing                    effects on the aquatic environment.                   all unavoidable impacts to wetlands
                                               marinas. Since the NWP does not                         Division engineers can regionally                     authorized under this NWP. Several
                                               authorize expansions of existing                        condition this NWP to reduce the                      commenters said that the NWP should
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                                               marinas, it is not necessary to add a                   acreage limit or restrict or prohibit its             require permittees to minimize on-and
                                               condition to provide a minimum                          use in specific regions or waters. In                 off-site impacts and avoid flooding,
                                               maneuvering distance. Concerns about                    response to a pre-construction                        because the general conditions do not
                                               modifications to marinas constructed on                 notification, district engineers may                  adequately address flooding or water
                                               state-owned submerged lands are more                    exercise discretionary authority to add               quality impacts. Several commenters
                                               appropriately addressed through a state                 conditions to the NWP authorization or                said that this NWP should not authorize
                                               authorization process.                                  require an individual permit. The 1⁄2-                residential subdivisions unless the


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                                               10218                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               project proponents can demonstrate                      endangered species or their habitats, or              development project is a single and
                                               those subdivisions will not cause an                    where there are rare or imperiled habitat             complete project with independent
                                               increased flood hazard on other                         types. One stated that this NWP should                utility, a separate NWP 29 authorization
                                               properties.                                             not authorize discharges of dredged or                can be used to authorize that single and
                                                  We do not agree that it is necessary                 fill material below the ordinary high                 complete non-linear project.
                                               to require compensatory mitigation for                  water mark of any water of the United                    Two commenters said that the NWP
                                               all activities authorized by this NWP to                States or areas of fish habitat. One                  should require vegetated buffers. One
                                               satisfy the minimal adverse                             commenter said that attendant features                commenter stated that district engineers
                                               environmental effects requirement for a                 should be limited to a garage, a                      have too much discretion regarding
                                               general permit. For many small losses of                driveway no more than 16 feet wide,                   buffers and the general condition
                                               waters of the United States authorized                  parking or vehicle turn areas, lawns that             restricts buffers so that they are not as
                                               by this NWP, it is not practicable to                   are no more than 15 feet from the                     effective as they could be.
                                               require compensatory mitigation to                      building pad, septic fields, utilities,                  Compensatory mitigation for activities
                                               offset those losses, especially in areas                deck foundations, and access paths. One               authorized by NWP 29 may be provided
                                               where there are no mitigation bank or                   commenter suggested modifying this                    through the establishment and
                                               in-lieu fee program credits available.                  NWP to require culverts and other                     maintenance of riparian areas next to
                                               The requirements for permittee-                         measures to maintain pre-construction                 open waters. Paragraph (f) of general
                                               responsible mitigation in 33 CFR 332.1                  drainage patterns on the site. One                    condition 23 addresses the use of
                                               through 332.7 impose substantial                        commenter said this NWP should                        riparian areas as compensatory
                                               documentation and planning                              require on-site sewage treatment                      mitigation, with recommended widths.
                                               requirements that affect the                            systems.                                              The recommended widths are based in
                                               practicability of providing ecologically                   Compliance with the federal                        part on the minimum width necessary
                                               successful permittee-responsible                        Endangered Species Act is addressed by                for riparian areas to help protect or
                                               mitigation, especially for small losses of              general condition 18. Compliance with                 improve water quality, and in part on
                                               waters of the United States.                            state or local threatened or endangered               the principle that the amount of
                                               Compensatory mitigation for NWP                         species laws or ordinances, or state or               compensatory mitigation must be
                                               activities is only necessary in cases                   local requirements to avoid rare or                   roughly proportional to the permitted
                                               where the district engineer makes a                     imperiled habitats, is the responsibility             impacts (see 33 CFR 320.4(r)(2)). Since
                                               project-specific determination that                     of the permittee. Since all activities                the NWP has an acreage limit of 1⁄2-acre,
                                               compensatory mitigation is needed to                    authorized by this NWP require pre-                   any required compensatory mitigation
                                               ensure that the activity results in                     construction notification, district                   must be roughly proportional to the
                                               minimal individual and cumulative                       engineers will review proposed                        authorized loss of waters of the United
                                               adverse effects on the aquatic                          activities that involve discharging                   States.
                                               environment (see 33 CFR 330.1(e)(3)).                   dredged or fill material into open                       This NWP is reissued as proposed.
                                               General condition 23, mitigation,                       waters, including fish habitat, to ensure                NWP 30. Moist Soil Management for
                                               requires permittees to avoid and                        that those activities result in minimal               Wildlife. No changes were proposed for
                                               minimize adverse effects to waters of                   adverse effects on the aquatic                        this NWP and no comments were
                                               the United States on the project site, to               environment. The text of the NWP                      received. This NWP is reissued without
                                               the maximum extent practicable.                         provides examples of the types of                     change.
                                               Concerns about adverse effects on                       attendant features that may be                           NWP 31. Maintenance of Existing
                                               floodplains and floodways are more                      authorized. Further restrictions on those             Flood Control Facilities. We proposed to
                                               appropriately addressed by the state and                attendant features may be provided                    modify this NWP to authorize, in cases
                                               local agencies that have the primary                    through regional conditions imposed by                where a section 404 and/or section 10
                                               responsibility for floodplain                           Division engineers or activity-specific               permit would be required, the removal
                                               management. General condition 10, fills                 conditions added to an NWP 29                         of vegetation from levees associated
                                               within 100-year floodplains, requires                   authorization by a District engineer.                 with a flood control project.
                                               permittees to comply with applicable                    General condition 9, management of                       Several commenters supported the
                                               Federal Emergency Management                            water flows, requires permittees to                   proposed modification and said that
                                               Agency-approved state or local                          maintain, to the maximum extent                       vegetation removal is a critical
                                               floodplain management requirements.                     practicable, the pre-construction course,             component of the maintenance of a
                                               Most floodplains are uplands, not                       condition, capacity, and location of                  flood control project to ensure
                                               waters of the United States, and the                    open waters, such as streams, except                  continued effectiveness and integrity of
                                               Clean Water Act Section 404 permit                      under certain situations identified in the            levees and other flood control facilities.
                                               program cannot be used to manage                        text of the general condition. Sewage                 Two commenters objected to the
                                               floodplain impacts, except for                          treatment system requirements for                     proposed modification. One commenter
                                               discharges of dredged or fill material or               residential developments are the                      opposed the removal of vegetation from
                                               other pollutants into wetlands and other                primary responsibility of state or local              flood control facilities, stating the
                                               jurisdictional waters that are located in               governments.                                          vegetation has ecological importance.
                                               floodplains. Residential developments,                     One commenter requested                            One commenter said that vegetation
                                               whether they are single units or                        clarification on whether this NWP can                 removal is not regulated by the Corps.
                                               multiple-unit subdivisions, must                        be used to authorize phased                           One commenter stated that if the plant
                                               comply with all terms and conditions of                 development projects. Several                         species proposed to be removed have
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                                               this NWP, including the requirement                     commenters suggested limiting this                    cultural and medicinal Native American
                                               that they result in minimal adverse                     NWP to a single use.                                  traditional uses, consultation with the
                                               environmental effects.                                     General condition 15, single and                   Tribe or another type of permit should
                                                  One commenter said that this NWP                     complete project, states that the same                be required for the activity.
                                               should not authorize activities that                    NWP can only be used once for the                        We have retained the proposed
                                               result in adverse impacts to state or                   same single and complete project. If a                language in this NWP, to authorize the
                                               federally listed threatened or                          particular phase of a phased                          removal of vegetation from a levee,


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                           10219

                                               when that activity involves a discharge                    Several commenters said that there                 losses of aquatic resource functions. If
                                               of dredged or fill material into waters of              should be an acreage limit for vegetation             maintenance is done in a timely
                                               the United States or is considered to be                removal. Another commenter                            manner, there is likely to be little in
                                               work in navigable waters of the United                  recommended imposing a linear foot                    terms of increases in aquatic resource
                                               States for the purposes of Section 10 of                limit on vegetation removal. One                      functions between maintenance
                                               the Rivers and Harbors Act of 1899. We                  commenter recommended revoking this                   activities. The purpose of maintaining
                                               agree that vegetation removal that does                 NWP in California.                                    these flood control facilities is to reduce
                                               not involve such a discharge does not                      Since this NWP authorizes                          flood risk. Riparian functions that
                                               require a DA permit. Division engineers                 maintenance activities, we do not                     increased between maintenance
                                               can regionally condition this NWP to                    believe there should be an acreage or                 activities do not need to be replaced by
                                               identify plant species that have cultural               linear foot limit on vegetation removal.              imposing compensatory mitigation
                                               and medicinal uses by Tribes, and to                    Division engineers may also add                       requirements on this NWP.
                                               require government-to-government                        regional conditions to this NWP to                       Several commenters said that the use
                                               consultation to address impacts to such                 impose acreage or linear foot limits on               of this NWP results in more than
                                               species. General condition 17, Tribal                   vegetation removal.                                   minimal individual and cumulative
                                               rights, protects reserved treaty rights,                   One commenter stated that many                     impacts, and may also inhibit
                                               including reserved water rights and                     NWP authorizations are related to the                 comprehensive basin-wide flood risk
                                               treaty fishing and hunting rights.                      maintenance baseline and the NWP                      management planning and restoration
                                               Natural or cultural tribal trust resource               should provide more details about the                 approaches.
                                               concerns can still be addressed through                 maintenance baseline approval process.                   We do not agree that these
                                               the NWP decisionmaking process, and                     This commenter suggested that the NWP                 maintenance activities cause more than
                                               would not necessarily result in                         specify: the deadline for completion, the             minimal adverse effects on the aquatic
                                               requiring an individual permit.                         responsible party, the regulating entity              environment, on an individual or
                                                  Several commenters said that                         that approves the maintenance baseline,               cumulative basis. This NWP is intended
                                               vegetation may strengthen the integrity                 etc. One commenter requested                          as a tool to support appropriate flood
                                               of levees and stated that individual                    clarification on the timeframe for                    management activities, including
                                               permits should be required for                          approval of the maintenance baseline.                 comprehensive flood risk management
                                               vegetation removal. One commenter                          The current terms and conditions of                planning and restoration processes,
                                               stated that vegetation on levees should                 the NWP provide sufficient details on                 where maintenance of existing flood
                                               be allowed or retained as part of levee                 what is needed to establish the                       control structures is required.
                                               management and that the vegetation                      maintenance baseline. Approval of the                    One commenter recommended
                                               should be removed only if specific levee                maintenance baseline is to be made                    modifying the pre-construction
                                               maintenance or safety concerns are                      within the 45-day review period, which                notification provision to require a
                                               identified. One commenter stated that                   begins once a complete pre-construction               topographic map identifying the
                                               not allowing flood control districts to                 notification is received by the                       disposal site. One commenter said that
                                               remove vegetation from levees would                     appropriate Corps district office. The                the 1996 Water Resources Development
                                               put them into non-compliance with                       pre-construction notification must                    Act allows for regional variations in
                                               their permits and with other state and                  include a description of the                          vegetation management on levees.
                                               local approvals. One commenter said                     maintenance baseline.                                    The NWP already requires the
                                               that the removal of vegetation from a                      Many commenters expressed concern                  prospective permittee to submit
                                               levee should only be authorized after                   about the mitigation provision of this                information concerning the location of
                                               Endangered Species Act consultation                     NWP, especially the one-time limit for                the dredged material disposal site.
                                               has been completed.                                     mitigation per facility regardless of the             There are a variety of maps that could
                                                  The decision on whether vegetation                   number of times maintenance occurs.                   be used to provide that information, and
                                               needs to be removed from a levee to                     These commenters said that limiting                   we do not believe it should be restricted
                                               maintain its functional and structural                  compensatory mitigation may result in                 to topographic maps. We have modified
                                               integrity is more appropriately made by                 more than minimal adverse                             this NWP to state that all dredged
                                               those entities that are responsible for                 environmental effects, including                      material must be placed in an area that
                                               ensuring the integrity and functional                   adverse impacts to floodplains and                    has no waters of the United States or in
                                               effectiveness of that levee. That decision              increased flood risk. These commenters                a separately authorized disposal site,
                                               is not the responsibility of the Corps                  recommended requiring mitigation for                  since the disposal of dredged material
                                               Regulatory Program or its staff. The                    each maintenance activity. One                        into non-jurisdictional waters and
                                               NWP is only a means to provide                          commenter stated that vegetation                      wetlands, as well as uplands, does not
                                               Department of the Army authorization                    removal should not be authorized                      require DA authorization. As stated
                                               for such activities, if a section 404 and/              because effective compensatory                        above, the decision on whether to
                                               or section 10 permit is required. If the                mitigation cannot be provided. One                    remove vegetation is the responsibility
                                               vegetation removal may affect a listed                  commenter said that certain riparian                  of the entity charged with managing and
                                               species under the Endangered Species                    functions, such as shading, and losses of             maintaining the flood control facility.
                                               Act, and a Department of the Army                       aesthetic values, cannot be provided                     This NWP is reissued with the
                                               permit is required, the Corps will                      through off-site mitigation.                          modifications discussed above.
                                               conduct section 7 consultation in                          We do not agree that compensatory                     NWP 32. Completed Enforcement
                                               accordance with general condition 18,                   mitigation should be required for each                Actions. There were no changes
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                                               endangered species, unless another                      maintenance activity. On-going                        proposed for this NWP. One commenter
                                               Federal agency has already fulfilled the                maintenance of flood control facilities is            recommended adding a condition to the
                                               section 7 requirements, or the project                  necessary to ensure that those projects               NWP requiring that the state be a party
                                               proponent has complied with the                         fulfill their intended purposes. Any                  to any lawsuit, or have an opportunity
                                               Endangered Species Act and received an                  compensatory mitigation that was                      to review the consent or settlement
                                               Endangered Species Act Section 10                       required when the maintenance baseline                agreement. Another commenter
                                               permit.                                                 was established is sufficient to offset               requested coordination with any


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                                               10220                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               affected Tribes prior to administering an               environmental effects. For example, a                 particles. One commenter stated that
                                               enforcement action to ensure that Tribal                structure may be cut near the ocean                   cofferdams should be required to be
                                               treaty resources are protected.                         bottom, but part of the structure and its             maintained in good working order
                                                  This NWP only provides Federal                       foundation left in place, because                     throughout the duration of the project.
                                               authorization under Section 10 of the                   removing the entire structure and its                   We do not agree that there should be
                                               Rivers and Harbors Act of 1899 and                      foundation would result in substantial                acreage, linear foot, or cubic yard limits
                                               Section 404 of the Clean Water Act, and                 disturbance of the ocean bottom.                      on this NWP since it authorizes
                                               it is not appropriate to modify this NWP                Leaving those portions of the original                temporary structures, work, or
                                               to require state involvement in these                   structure and foundation in place                     discharges, and all activities require pre-
                                               actions. States are often involved as co-               requires a permit under Section 10 of                 construction notification. In response to
                                               regulators in enforcement activities,                   the Rivers and Harbors Act of 1899                    a pre-construction notification, district
                                               under various authorities, and this NWP                 because it constitutes an obstruction                 engineers can add activity-specific
                                               in no way undercuts those authorities.                  that may alter the course, condition, or              conditions to the NWP authorization to
                                               General condition 17, tribal rights, states             capacity of navigable waters of the                   impose limits or require specific best
                                               that no activity or its operation may                   United States. A structure left in place              management practices or specific
                                               impair reserved tribal rights.                          in a waterbody subject only to section                construction techniques to minimize
                                                  This NWP is reissued as proposed.                    404 jurisdiction does not require section             adverse effects to the aquatic
                                                  NWP 33. Temporary Construction,                      10 authorization. Such a structure                    environment where necessary.
                                               Access, and Dewatering. We did not                      would not require a section 404 permit                  We have modified this NWP to state
                                               propose any changes to this NWP.                        unless it meets the definition of fill                that temporary fill must be entirely
                                               Several commenters recommended that                     material (see 33 CFR 323.3(c)).                       removed to an area that has no waters
                                               the Corps define the term ‘‘temporary.’’                   One commenter asked why NWP 33                     of the United States, since the
                                               One commenter said that ‘‘temporary’’                   activities require pre-construction                   placement of fill material into non-
                                               should be less than two years, another                  notification for temporary structures,                jurisdictional waters and wetlands, as
                                               stated that one year should be the limit,               work, and discharges while these types                well as uplands, does not require DA
                                               and a third commenter suggested 90                      of activities may be authorized under                 authorization.
                                               days as the limit for what constitutes a                NWPs 3, 12, 13, and 14 without a pre-                   The NWP is reissued with the
                                               temporary structure or fill. Several                    construction notification.                            modification discussed above.
                                               commenters stated that the NWP should                      While temporary structures, work,                    NWP 34. Cranberry Production
                                               require a specific timeframe and                        and fills are authorized by NWPs 3, 12,               Activities. We did not propose any
                                               deadline for completion of revegetation                 13, and 14, those NWPs have terms and                 changes to the NWP. One commenter
                                               activities. Other commenters said that                  conditions to help ensure that those                  said that this NWP should not authorize
                                               any revegetation should use only native                 activities result in minimal adverse                  losses of wetland functions. Two
                                               plant species associated with the                       effects on the aquatic environment.                   commenters expressed concern that the
                                               general habitat type that had existed                   Since NWP 33 can be used to authorize                 10-acre limit would allow significant
                                               prior to construction.                                  temporary structures, work, and                       losses of wetland acreage and functions
                                                  The term ‘‘temporary’’ should be                     discharges done in association with a                 and values, if the 10-acre limit is
                                               determined by district engineers on a                   wide variety of other categories of                   applied only to the five year period the
                                               case-by-case basis, after considering                   activities, that uncertainty makes it                 NWP is in effect. These commenters
                                               factors such as the type of project, the                necessary to require pre-construction                 proposed making the 10-acre limit apply
                                               waters affected by the activity, the                    notification for all activities authorized            to future activities. One commenter
                                               construction techniques and equipment                   by NWP 33. Such a requirement allows                  suggested limiting the NWP
                                               used, etc. In response to a pre-                        the Corps to review the temporary and                 authorization to a single cranberry
                                               construction notification, district                     permanent impacts that are likely to                  production unit. One commenter said
                                               engineers can add conditions to the                     occur as a result of the overall activity.            that this NWP should not be reissued.
                                               NWP authorization to impose specific                       One commenter stated that the NWP                    This NWP does not authorize
                                               time frames for revegetating affected                   should never authorize temporary fills                discharges of dredged or fill material
                                               areas. Activity-specific conditions may                 that impact more than 1,000 square feet               that would result in a net loss of waters
                                               also be added to the NWP authorization                  or discharge more than 25 cubic yards                 of the United States. While there would
                                               to specify the plant species to be used                 into waters of the U.S., and temporary                be some loss of wetland function as
                                               at the site.                                            structures or construction mats shall not             wetlands are converted for cranberry
                                                  One commenter asked why the NWP                      impact more than 1⁄10-acre. One                       production, the NWP requires wetland
                                               would state that a separate section 10                  commenter stated that the NWP should                  acreage to be maintained. There would
                                               permit is required if a structure is left               require that geotextile fabric be installed           be no loss of wetland acreage over time
                                               in place in navigable waters of the                     prior to placement of fill material, and              due to future activities since the NWP
                                               United States after completion of                       two commenters suggested that                         does not authorize discharges of
                                               construction, especially if the                         temporary culverts and bridges in                     dredged or fill material that would
                                               waterbody is not a section 10 water.                    streams should be required to match the               result in permanent losses of wetland
                                               This commenter wondered how a                           bankfull width and stream slope.                      acres. This NWP applies to single and
                                               ‘‘structure’’ constructed in a non-                     Another commenter stated that all                     complete cranberry production
                                               Section 10 water could be left in place                 slurry resulting from dewatering                      activities, which would be identified by
                                               and still qualify as a temporary                        operation should be discharged through                district engineers during the review of
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                                               structure.                                              a filter bag or pumped to a sump located              pre-construction notifications.
                                                  In some cases, it may be more                        away from wetlands and surface waters                   This NWP is reissued without change.
                                               environmentally beneficial to leave part                and allowed to filter through natural                   NWP 35. Maintenance Dredging of
                                               of a structure in place in navigable                    upland vegetation, gravel filters, or                 Existing Basins. There were no changes
                                               waters of the United States, when                       other engineered devices for a sufficient             proposed for this NWP. Two
                                               complete removal of the structure is                    distance and/or period of time necessary              commenters recommended adding
                                               expected to result in substantial adverse               to remove sediment or suspended                       limits to this NWP. Two commenters


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10221

                                               said this NWP should not be used in                        This NWP is reissued with the                      environment. We have retained the
                                               areas with suspected sediment                           modification discussed above.                         provision authorizing district engineers
                                               contamination, especially in areas                         NWP 36. Boat Ramps. We did not                     to issue written waivers to the 50 cubic
                                               where there might be contamination                      propose any changes to this NWP. One                  yard and/or 20 foot width limits, if a
                                               from fuel. Another commenter stated                     commenter said that boat ramps should                 proposed activity is determined to result
                                               the applicant should demonstrate that                   not be authorized by NWPs because                     in minimal adverse environmental
                                               the sediment is not contaminated. One                   they cause significant environmental                  effects. The waiver provision may be
                                               commenter asked that the term                           impacts, including impacts to Tribal                  used to authorize larger boat ramps, as
                                               ‘‘upland’’ be clarified to state that it                treaty fishing activities and access. One             long as they are determined by the
                                               means land located above the ordinary                   commenter stated that this NWP should                 district engineer to result in minimal
                                               high water mark. One commenter stated                   be limited to individual riparian lot                 adverse environmental effects.
                                               that this NWP would have greater utility                owners and not authorize commercial                      One commenter asked for clarification
                                               if it authorized beneficial use of dredged              boat ramps. One commenter said that                   on what is meant by placement in the
                                               material, such as wetland restoration,                  the NWP should require notification to                upland. One commenter said that these
                                               enhancement, or establishment                           the state agency responsible for                      activities may affect historic properties
                                               activities.                                             managing state-owned submerged lands.                 and the activity should not be
                                                  Since this NWP authorizes only                          The terms and conditions of this NWP               authorized unless the state concurs that
                                               maintenance dredging activities in                      (specifically the limits on fill volume               there are no documented resources
                                               existing marina basins, we do not                       and ramp width) will ensure that the                  within the permit area.
                                               believe it is necessary to add an acreage               NWP authorizes only those activities                     We have modified paragraph (d) to
                                               limit or other type of quantitative limit.              that result in minimal adverse effects on             clarify that all excavated material must
                                               Division engineers can regionally                       the aquatic environment. Division                     be removed to an area that has no waters
                                               condition this NWP to require                           engineers may regionally condition this               of the United States, because some
                                               notification to the district engineer. This             NWP to restrict or prohibit its use in                wetlands and waters are not subject to
                                                                                                       specific waters or geographic areas if                Clean Water Act jurisdiction and section
                                               NWP is limited to maintenance
                                                                                                       they have concerns that more than                     404 permits are not required to
                                               dredging in marina basins, access
                                                                                                       minimal individual and cumulative                     discharge dredged or fill material into
                                               channels to marinas, and boat slips,
                                                                                                       adverse environmental effects may                     those non-jurisdictional wetlands and
                                               which are likely to have some degree of
                                                                                                       occur. In response to a pre-construction              waters. A separate Department of the
                                               contaminated sediment in the substrate
                                                                                                       notification, district engineer may add               Army authorization is required if the
                                               because of past and present boat use,
                                                                                                       activity-specific conditions to the NWP               project proponent wants to deposit the
                                               especially in larger marinas. Removal of
                                                                                                       authorization to satisfy the minimal                  excavated material into waters of the
                                               such contaminated sediments, and
                                                                                                       adverse environmental effects                         United States. Activities authorized by
                                               complying with the requirement in the
                                                                                                       requirement. We do not agree that this                this NWP must comply with general
                                               NWP to deposit the dredged material in                  NWP should be limited to private land                 condition 20, historic properties, as well
                                               an upland site, will help ensure the                    owners. Commercial boat ramps that                    as general condition 21, discovery of
                                               activity results in minimal adverse                     comply with the terms and conditions                  previously unknown remains and
                                               effects on the aquatic environment.                     of this NWP will also result in minimal               artifacts. District engineers will conduct
                                               Defining the term ‘‘upland’’ to mean                    adverse environmental effects. The                    National Historic Preservation Act
                                               lands located above an ordinary high                    potential for adverse effects is based on             Section 106 consultation if they
                                               water mark would be incorrect. There                    the footprint of the ramp, which is                   determine the proposed activity has the
                                               may be wetlands landward of the                         limited by the conditions of this NWP,                potential to cause effects to any historic
                                               ordinary high water mark. We have                       not its ownership. State agencies                     property.
                                               modified this NWP to state that dredged                 responsible for managing submerged                       This NWP is reissued as proposed.
                                               material must be placed in an area that                 lands may develop their own                              NWP 37. Emergency Watershed
                                               has no waters of the United States, since               procedures for regulating and                         Protection and Rehabilitation. No
                                               the disposal of dredged material into                   authorizing the construction of boat                  changes were proposed for this NWP.
                                               non-jurisdictional waters and wetlands,                 ramps on submerged lands. The Corps                   Two commenters stated that in their
                                               as well as uplands, does not require DA                 has neither the authority nor the                     region, flood control activities including
                                               authorization. The district engineer may                resources to enforce any state                        those authorized by this NWP, are
                                               issue a separate Department of the Army                 requirements with respect to such lands.              important and suggested reducing the
                                               authorization to a project proponent                       Two commenters recommended                         45-day waiting period for pre-
                                               who wants to use the dredged material                   reducing the pre-construction                         construction notifications to 21 days.
                                               to restore, enhance, or establish                       notification thresholds for this NWP.                 Two commenters expressed support for
                                               wetlands.                                               One commenter suggested limiting                      allowing district engineers to waive the
                                                  One commenter stated that                            discharges of dredged or fill material to             pre-construction notification
                                               precautions should be taken to ensure                   25 cubic yards, with a maximum boat                   requirements in cases where there is an
                                               that dredging equipment does not                        ramp width of 12 feet. Another                        unacceptable hazard to life or a
                                               entrain or kill any Federally-listed                    commenter said that the quantitative                  significant loss of property or economic
                                               species and recommend that preemptive                   limits for this NWP should not be                     hardship will occur. One commenter
                                               trawling around the dredge head be                      waived. One commenter stated that the                 said that although this NWP is intended
                                               conducted to capture or relocate state or               current 50 cubic yard limit is too small              to authorize watershed protection and
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                                               federally listed species.                               and should be increased to authorize                  rehabilitation, these activities may
                                                  General condition 18 addresses                       larger boat ramps.                                    result in a net loss of waters and
                                               compliance with the Endangered                             The pre-construction notification                  appropriate mitigation should be
                                               Species Act, and section 7 consultation                 thresholds are sufficient for ensuring                required.
                                               is required for any activity that may                   that this NWP authorizes activities with                 We do not believe it would be
                                               affect listed species or is located in                  minimal individual and cumulative                     appropriate to reduce the pre-
                                               designated critical habitat.                            adverse effects on the aquatic                        construction notification review period


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                                               10222                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               for this NWP from 45 days to 21 days.                   commenced quickly and it could cause                  pre-construction notification involving a
                                               The NWP provides flexibility for the                    additional harm to the aquatic                        proposed waiver of the 300 linear foot
                                               emergency watershed protection and                      environment if they had to wait for an                limit.
                                               rehabilitation activities to proceed                    individual permit to be issued. The                      Two commenters suggested increasing
                                               immediately if there is an unacceptable                 district engineer may also add activity-              the acreage limit from 1⁄2 to one acre.
                                               hazard to life or a significant loss of                 specific conditions to the NWP                        Another said that acreage limits should
                                               property or economic hardship will                      authorization to require compensatory                 be established on a regional or
                                               occur. The NWP does not allow the                       mitigation, including restoration or                  watershed basis, instead of a single
                                               district engineer to waive the pre-                     rehabilitation of affected aquatic                    national acreage limit. Two commenters
                                               construction notification requirement in                resources (see 33 CFR 330.1(e)(3) and                 suggested increasing the linear foot limit
                                               cases where there would be                              general condition 23, mitigation) to                  to 500 feet. One commenter stated that
                                               unacceptable hazards to life or                         satisfy the minimal adverse                           the NWP should not authorize activities
                                               significant losses of property or                       environmental effects requirement for                 that are not water dependent.
                                               economic hardships. If a project                        general permits.                                         We believe that both the 1⁄2-acre limit
                                               proponent wants to use NWP 37 to                           This NWP is reissued without change.               and the 300 linear foot limit are
                                               authorize an emergency watershed                           NWP 39. Commercial and                             necessary to ensure that this NWP
                                               protection and rehabilitation activity,                 Institutional Developments. We                        authorizes activities that result only in
                                               pre-construction notification is                        proposed to modify this NWP by                        minimal individual and cumulative
                                               required. This is a minimally                           changing the waiver provision for                     adverse effects on the aquatic
                                               burdensome requirement that can be                      activities resulting in the loss of greater           environment. Division engineers can
                                               complied with quickly which allows the                  than 300 linear feet of intermittent and              regionally condition this NWP to further
                                               district engineer to verify that there is a             ephemeral stream bed, to clarify that the             ensure only minimal adverse effects to
                                               genuine emergency. In addition, in                      district engineer will only issue the                 the aquatic environment occur in a
                                               response to a pre-construction                          waiver after making a project-specific                particular area or region, based on
                                               notification, the district engineer may                 written determination that the activity               region specific conditions. District
                                               condition the NWP authorization to                      will result in minimal adverse effects.               engineers can also add specific
                                               require compensatory mitigation to                         Two commenters expressed support                   conditions to an NWP authorization to
                                               offset losses of aquatic resources and                  for the proposed modification. One                    ensure minimal individual or
                                               ensure that the adverse effects on the                  commenter said that intermittent                      cumulative adverse effects. The
                                               aquatic environment are minimal (see                    streams should be removed from the                    statutory basis for authorizing activities
                                               33 CFR 330.1(e)(3) and general                          waiver provision so that the 300 linear               by general permits is that they have
                                               condition 23, mitigation).                              foot limit could be waived only for                   minimal adverse effects, individually
                                                  The NWP is reissued without change.                  losses of ephemeral streams. One                      and cumulatively, not that they be water
                                                  NWP 38. Cleanup of Hazardous and                     commenter recommended removing the                    dependent.
                                               Toxic Waste. We did not propose any                     waiver provision.                                        One commenter said that commercial
                                               changes for this NWP. One commenter                        We have retained the provision                     and institutional developments are
                                               stated the NWP should be revoked                        allowing the 300 linear foot limit to be              typically phased developments, are
                                               because hazardous waste cleanup from                    waived for losses of intermittent stream              larger in scale than other projects, and
                                               aquatic areas has the potential to cause                bed, since such activities may, in some               should not be authorized by NWP. One
                                               significant adverse environment effects                 cases, result in minimal adverse effects              commenter said that this NWP should
                                               during and after the cleanup activities.                on the aquatic environment. General                   not be reissued because these activities
                                               This commenter said that these                          comments concerning the 300 linear                    result in more than minimal cumulative
                                               activities require site-specific review                 foot limit to the loss of stream bed are              adverse effects to wetlands and streams.
                                               and should not be authorized by NWP.                    discussed in a separate section of the                One commenter suggested requiring
                                               Another commenter recommended                           preamble.                                             compensatory mitigation for all
                                               adding a condition to the NWP to                           One commenter urged the elimination                activities authorized by this NWP. Two
                                               require minimization, to the maximum                    of the pre-construction notification                  commenters said that this NWP should
                                               extent possible, of impacts to waters and               because that requirement results in                   include a requirement to establish
                                               wetlands, and require restoration of the                delays and increases in cost. One                     buffers next to waters of the United
                                               affected areas.                                         commenter recommended conducting a                    States, clarification that the limits apply
                                                  The cleanup of hazardous and toxic                   natural heritage database search if a                 to the project site and not to multiple
                                               wastes, if conducted properly, will                     waiver determination is made that the                 applicants, and a provision requiring
                                               improve the aquatic environment by                      activity will result in minimal adverse               flood protections. One commenter
                                               removing harmful chemicals and other                    effects.                                              stated industrial facilities that may be
                                               substances that are likely to degrade the                  The pre-construction notification                  authorized by this NWP cause indirect
                                               quality of wetlands, streams, and other                 requirement is necessary so that all of               impacts to water quality that could be
                                               aquatic resources, as well as the                       these activities are reviewed by district             significant and suggested not reissuing
                                               functions they provide. This NWP                        engineers to ensure that those activities             this NWP.
                                               requires pre-construction notification,                 result in minimal adverse effects on the                 Phased developments may be
                                               which will provide the district engineer                aquatic environment. District engineers               authorized by general permits, as long
                                               the opportunity to review the proposed                  may add conditions to the NWP                         as they comply with all applicable terms
                                               activity, including available site-specific             authorization to require compensatory                 and conditions of those general permits.
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                                               information, to determine if that activity              mitigation or other measures to comply                In particular, an NWP may only be used
                                               qualifies for NWP authorization. This                   with the minimal adverse                              once for each single and complete
                                               NWP authorizes cleanup activities                       environmental effects requirement                     project. The limits in this NWP, which
                                               conducted, ordered, or sponsored by                     established for general permits. District             are consistent with those in many other
                                               other government agencies, which have                   engineers may consider information                    NWPs, will generally ensure minimal
                                               also reviewed those activities. In some                 from state natural heritage databases                 adverse effects. In specific watersheds
                                               cases these activities need to be                       where appropriate when evaluating a                   or other geographic areas where a


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10223

                                               district engineer is concerned that the                 that were not authorized by the 2007                  Department of Defense Siting
                                               use of NWP 39 may result in more than                   version of NWP 39, specifically new golf              Clearinghouse if NWP 39 is proposed to
                                               minimal cumulative adverse effects to                   courses, new ski areas, or oil or gas                 be used, and is used, to authorize the
                                               the aquatic environment, the division                   wells, could be expanded through the                  construction of wind energy generating
                                               engineer may regionally condition this                  authorization provided by this NWP.                   structures, solar towers, or overhead
                                               NWP to restrict or prohibit its use to                  Three commenters suggested                            transmission lines. The Department of
                                               ensure that the threshold for minimal                   eliminating the exclusion for the                     Defense Siting Clearinghouse is
                                               individual and cumulative adverse                       construction of oil and gas wells and                 responsible for coordinating with the
                                               effects on the aquatic environment is                   attendant features.                                   project proponent and resolving any
                                               not exceeded. We do not agree that                         The expansion of commercial and                    potential effects on Department of
                                               compensatory mitigation should be                       institutional developments into waters                Defense long range surveillance,
                                               required for all activities authorized by               of the United States may qualify for                  homeland defense, testing, and training
                                               this NWP. District engineers will add                   NWP authorization, as long as it                      missions.
                                               activity-specific conditions to the NWP                 complies with all applicable terms and                   This permit is reissued with the
                                               authorization to require compensatory                   conditions of the NWP and results in                  modification discussed above.
                                               mitigation in accordance with general                   minimal individual and cumulative                        NWP 40. Agricultural Activities. We
                                               condition 23, mitigation (also see 33                   adverse effects on the aquatic                        proposed to modify this NWP so the 300
                                               CFR 330.1(e)(3)), where necessary to                    environment. This NWP complies with                   linear foot limit applies to all stream
                                               ensure minimal effects. The                             the 404(b)(1) Guidelines, especially 40               losses, not just drainage ditches
                                               establishment and maintenance of                        CFR 230.7, which addresses the                        constructed in streams. To waive the
                                               riparian areas next to open waters, or                  issuance of general permits. The acreage              300 linear foot limit for losses of
                                               buffers next to wetlands, may be                        limit applies to a single and complete                intermittent or ephemeral stream bed,
                                               required as compensatory mitigation, in                 project. The expansion of an existing                 the district engineer would have to
                                               accordance with general condition 23,                   commercial or institutional                           make a project-specific written
                                               mitigation, and the regulations at 33                   development may only be authorized                    determination that the activity will
                                               CFR part 332. The acreage limits of this                under a separate NWP authorization if                 result in minimal adverse effects.
                                                                                                       it is a separate single and complete                     Two commenters support the changes
                                               NWP apply to single and complete
                                                                                                       project with independent utility. For                 and said the modification would ensure
                                               projects, even though a single and
                                                                                                       example, one or more phased                           NWP 40 authorizes activities with
                                               complete project may have more than
                                                                                                       components of a commercial or                         minimal adverse effects on the aquatic
                                               one project proponent. In general, a
                                                                                                       institutional development may have                    environment. One commenter opposed
                                               commercial development project in
                                                                                                       independent utility and may be                        expanding the 300 linear foot limit to all
                                               which a developer prepares a large site
                                                                                                       authorized as separate single and                     stream losses, stating that the NWP
                                               and then markets individual lots to
                                                                                                       complete projects. The expansion of                   should not authorize the loss of natural
                                               individual builders would be                                                                                  streams. Another commenter
                                               considered one single and complete                      existing golf courses or ski areas may be
                                                                                                       authorized by this NWP. We agree that                 recommended removing intermittent
                                               project and the acreage limits would                                                                          streams from the waiver provision to
                                               apply to the development as a whole.                    the construction of pads for oil and gas
                                                                                                       wells is a type of commercial                         limit it to ephemeral streams. One
                                               See the definition of ‘‘single and                                                                            commenter said that waivers for the loss
                                                                                                       development that would be appropriate
                                               complete non-linear project’’ for further                                                                     of greater than 300 linear feet of
                                                                                                       for inclusion in this NWP. District
                                               information. General condition 10, fills                                                                      intermittent and ephemeral streams
                                                                                                       engineers may add conditions to NWP
                                               in 100-year floodplains, requires                                                                             should not be issued until a natural
                                                                                                       39 authorizations to require the removal
                                               permittees to comply with applicable                                                                          heritage database search was completed.
                                                                                                       of these pads and restoration of the site
                                               state or local floodplain management                                                                          Two commenters stated that the acreage
                                                                                                       once oil or gas extraction operations
                                               requirements that have been approved                                                                          limit and the ability to waive the 300
                                                                                                       have ceased and the wells will no longer
                                               by the Federal Emergency Management                                                                           linear foot limit do not adequately
                                                                                                       be used.
                                               Agency. District engineers will review                     One commenter said that this NWP                   address cumulative impacts and
                                               pre-construction notifications                          could be used to authorize activities                 requested the waiver provision be
                                               requesting NWP 39 authorization for                     associated with wind energy generating                removed.
                                               industrial facilities to ensure that                    structures, solar towers, or overhead                    Comments concerning the 300 linear
                                               adverse effects to water quality caused                 utility lines, which have the potential to            foot limits for the loss of stream bed and
                                               by the NWP activity are minimal,                        interfere with Department of Defense’s                the waiver process are discussed in a
                                               individually and cumulatively.                          long range surveillance, homeland                     previous section of the preamble. We
                                                  One commenter objected to                            defense, testing, and training missions.              are adopting the proposed language for
                                               authorizing the expansion of                            This commenter requested that copies of               the waiver provision. We are retaining
                                               commercial and institutional                            NWP 39 pre-construction notifications                 the provision allowing the 300 linear
                                               developments into waters of the United                  and NWP verification letters for these                foot limit to be waived for losses of
                                               States, stating that it discourages                     activities be provided to the Department              ephemeral and intermittent stream bed,
                                               avoidance and minimization and is                       of Defense Siting Clearinghouse, so that              since such activities may result in
                                               contrary to the 404(b)(1) Guidelines.                   the Department of Defense could have                  minimal adverse effects on the aquatic
                                               One commenter requested clarification                   an opportunity to coordinate with the                 environment. District engineers may
                                               whether this NWP applies to new                         project proponent to ensure that long                 consider information from state natural
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                                               project construction or existing                        range surveillance, homeland defense,                 heritage databases when evaluating a
                                               construction projects so the acreage                    testing, and training missions are not                pre-construction notification involving a
                                               limits are applied cumulatively for both                adversely affected by these activities.               proposed waiver of the 300 linear foot
                                               the original construction and any                          We have added a Note at the end of                 limit. We believe that both the 1⁄2-acre
                                               subsequent expansion of the                             this NWP to require district engineers to             limit and 300 linear foot limit for stream
                                               development. One commenter asked                        send pre-construction notifications and               bed losses, along with the division
                                               whether certain categories of activities                NWP verification letters to the                       engineer’s authority to add regional


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                                               10224                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               conditions to this NWP and the district                 NWP should authorize drainage                         multiple NWPs and we are not aware of
                                               engineer’s authority to add activity-                   improvements beyond the original as-                  evidence that it has allowed projects
                                               specific conditions to an NWP                           built capacity. One commenter stated                  that do not meet the minimal effects
                                               authorization, will ensure that the NWP                 that this NWP should not be exempt                    requirement to be authorized, nor have
                                               authorizes activities with minimal                      from compensatory mitigation                          commenters provided such evidence.
                                               individual and cumulative adverse                       requirements even though the activity is              Division engineers may regionally
                                               effects on the aquatic environment.                     designed to improve water quality.                    condition this NWP to reduce the
                                               Division engineers may also suspend or                     We do not agree that the suggested                 acreage limit or revoke the NWP if its
                                               revoke this NWP in watersheds or other                  additional terms and conditions are                   use would result in more than minimal
                                               geographic areas if they find that use of               necessary to ensure that this NWP                     individual and cumulative adverse
                                               the NWP would result in more than                       authorizes ditch reshaping activities                 effects on the aquatic environment. The
                                               minimal cumulative adverse                              that have minimal adverse effects on the              300 linear foot limit for losses of stream
                                               environmental effects.                                  aquatic environment. The drainage                     bed is also necessary to ensure minimal
                                                  One commenter stated the 1⁄2-acre                    ditch slope is more appropriately                     adverse environmental effects. The
                                               limit should be based on farm tract and                 determined on a case-by-case basis.                   waiver provision is discussed in a
                                               asserted NWP 40 allows for the                          District engineers have the discretion to             separate section of the preamble. We are
                                               incremental fill of agricultural wetlands.              consult state natural heritage databases              retaining the 300 linear foot limit for
                                               One commenter stated that roadside                      while reviewing pre-construction                      stream bed impacts, as well as the
                                               stands should not be considered farm                    notifications. The authorized activities              ability for district engineers to provide
                                               buildings for authorization under this                  are intended to improve water quality,                written waivers of the 300 linear foot
                                               permit. Another commenter                               so there is no need to impose a one mile              limit for losses of intermittent and
                                               recommended farm building pads be                       limit or require compensatory                         ephemeral stream beds.
                                               limited to areas that have been in                      mitigation. Reshaping a drainage ditch                   One commenter suggested adding a
                                               existing, ongoing, agricultural                         to improve water quality may involve                  condition to this NWP to limit fill
                                               production since at least 1980. One                     discharging dredged or fill material into             pathways on public lands to six feet
                                               commenter remarked concern that this                    jurisdictional waters within the ditch.               wide, with a maximum length of 200
                                               NWP allows fills in waters for non-                     This NWP was originally issued to                     feet, and require open pile or floating
                                               water dependent uses. Another                           encourage activities that would help                  boardwalks/docks by prohibiting the
                                               commenter asserted this NWP should                      improve water quality within a                        discharges below the ordinary high
                                               not authorize farm ponds in wetlands.                   watershed, not to provide for public                  water mark of inland lakes, streams, or
                                                  The 1⁄2-acre limit applies to a single               safety. Discharging dredged or fill                   the Great Lakes, or areas that otherwise
                                               and complete project. The district                      material into waters of the United States             provide fish habitat functions of any
                                               engineer will determine, after                          to reshape existing drainage ditches                  kind.
                                               considering the specific circumstances                  primarily for the purposes of public                     We do not believe the recommended
                                               for a pre-construction notification,                    safety may be authorized by other                     restrictions are necessary to ensure that
                                               whether the single and complete project                 NWPs, regional general permits, or                    the NWP authorizes only those activities
                                               should be based on a farm tract,                        individual permits.                                   that result in minimal adverse effects on
                                               property boundary, or other appropriate                    This NWP is reissued as proposed.                  the aquatic environment. Division
                                               geographic area. Road stands may be                        NWP 42. Recreational Facilities. We                engineers may add regional conditions
                                               considered farm buildings for the                       proposed to modify this NWP by                        to this NWP to limit certain activities or
                                               purposes of this NWP. We do not agree                   changing the waiver provision for                     require specific construction
                                               that building pads for farm buildings                   activities resulting in the loss of greater           techniques. Division engineers may also
                                               should be limited to existing                           than 300 linear feet of intermittent and              restrict or prohibit the use of this NWP
                                               agricultural areas, or that they should be              ephemeral stream bed, to clarify that the             in certain waters to protect important
                                               treated differently than building pads                  district engineer will only issue the                 resources, such as fish habitat.
                                               authorized by NWPs 29 or 39. General                    waiver after making a project-specific                   One commenter supports requiring
                                               permits, including NWPs, may                            written determination that the activity               pre-construction notification for all
                                               authorize activities that are not water-                will result in minimal adverse effects.               activities authorized by this NWP. One
                                               dependent, as long as the general permit                   Two commenters said that the 1⁄2-acre              commenter said that the activities
                                               is issued in accordance with the                        limit of this NWP does not ensure                     authorized by this NWP are not similar
                                               requirements in the 404(b)(1) Guidelines                minimal adverse effects, and one of                   in nature. One commenter suggested
                                               at 40 CFR 230.7.                                        these commenters stated that the 300                  adding a condition requiring
                                                  This NWP is reissued as proposed.                    linear foot limit for stream bed losses               recreational facilities to be integrated
                                                  NWP 41. Reshaping Existing Drainage                  does not ensure minimal adverse effects               into the natural landscape and not
                                               Ditches. There were no changes                          either. Several commenters supported                  substantially change pre-construction
                                               proposed for this NWP. Several                          the proposed waiver provision, since it               grades or deviate from natural landscape
                                               commenters requested adding more                        emphasizes that the appropriate test is               contours. One commenter requested
                                               terms and conditions to this NWP to                     that the activity results in minimal                  clarification as to when an easement
                                               provide requirements concerning slope                   adverse effects. One commenter                        will not be required.
                                               stability, conducting a natural heritage                suggested removing intermittent streams                  We have retained the requirement that
                                               database search, limiting the NWP to                    from the waiver provision because of                  all project proponents who want to use
                                               reshaping no more than one mile of                      the potential for significant impacts to              this NWP must submit a pre-
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                                               drainage ditch, and placing the                         intermittent streams.                                 construction notification. This NWP
                                               excavated material in uplands. One                         The 1⁄2-acre limit is the appropriate              authorizes a specific category of
                                               commenter suggested replacing the                       limit to ensure that the activities                   activities (i.e., recreational facilities)
                                               phrase ‘‘for the purpose of improving                   authorized by this NWP result in                      and complies with the ‘‘similar in
                                               water quality’’ with ‘‘for the purpose of               minimal adverse effects on the aquatic                nature’’ requirement of Section 404(e) of
                                               improving water quality or public                       environment. This limit has been in                   the Clean Water Act. We do not agree
                                               safety.’’ This commenter also said the                  place over several permit terms and                   that it is necessary to require


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10225

                                               recreational facilities to be integrated                tool for fulfilling the objective of the              by this NWP. One commenter expressed
                                               into the natural landscape and not                      Clean Water Act, by protecting and                    concern that areas not subject to Clean
                                               substantially change pre-construction                   restoring the physical, chemical, and                 Water Act jurisdiction, such as swales
                                               grades. The 1⁄2-acre and 300 linear foot                biological integrity of our Nation’s                  and upland areas holding waters only
                                               limits, as well as the requirement to                   waters. The construction of stormwater                for short periods of time, may be
                                               avoid and minimize adverse effects to                   management facilities may involve                     considered to be waters of the United
                                               waters of the United States to the                      discharges of dredged or fill material                States if they are used for low impact
                                               maximum extent practicable on the                       into jurisdictional wetlands, so it would             development stormwater management
                                               project site (see general condition 23,                 not be appropriate to limit this NWP to               features. Several commenters requested
                                               mitigation), help ensure that the NWP                   constructed wetlands for the detention,               a definition for ‘‘low impact
                                               authorizes activities that result in                    retention, or treatment of stormwater.                development stormwater features’’ in
                                               minimal adverse effects. Conservation                      We have substantially modified the                 the definitions section. One commenter
                                               easements or other appropriate long-                    first paragraph of this NWP to clarify                asked whether hybrid or combined bank
                                               term protection instruments will only be                how construction and maintenance                      protection and stormwater management
                                               required, if necessary, for areas that are              activities may be authorized by this                  techniques are authorized by this NWP
                                               used to provide compensatory                            NWP, including the application of the                 or authorized by other NWPs.
                                               mitigation for activities authorized by                 waste treatment system exclusion at 33                   We have modified the text of this
                                               this NWP.                                               CFR 328.3(a)(8). Section 328.3(a)(8)                  NWP to clarify that the construction of
                                                  This permit is reissued as proposed.                 states that ‘‘[w]aste treatment systems,              low impact development integrated
                                                  NWP 43. Stormwater Management                        including treatment ponds or lagoons
                                                                                                                                                             management features is authorized by
                                               Facilities. We proposed to modify this                  designed to meet the requirements of’’
                                                                                                                                                             this NWP, if the construction involves
                                               NWP by adding low impact                                the Clean Water Act are not waters of
                                               development stormwater management                                                                             discharges of dredged or fill material
                                                                                                       the United States. The first half of this
                                               features to the examples of types of                                                                          into waters of the United States. We
                                                                                                       paragraph provides examples of the
                                               stormwater management facilities that                                                                         have also provided examples of the
                                                                                                       types of stormwater management
                                               may be authorized by this NWP. We                                                                             types of low impact development
                                                                                                       facilities that may be authorized by this
                                               also proposed to modify this NWP by                                                                           integrated management features that
                                                                                                       NWP, if the construction of those
                                               changing the waiver provision for                                                                             may be authorized by this NWP, such as
                                                                                                       facilities involves discharges of dredged
                                               activities resulting in the loss of greater                                                                   bioretention facilities (e.g., rain
                                                                                                       or fill material into waters of the United
                                               than 300 linear feet of intermittent and                States. The second half of this paragraph             gardens), vegetated filter strips, grassed
                                               ephemeral stream bed, to clarify that the               states that to the extent that a section              swales, and infiltration trenches. After
                                               district engineer will only issue the                   404 permit is required, this NWP also                 these low impact development
                                               waiver after making a project-specific                  authorizes discharges of dredged or fill              integrated management features are
                                               written determination that the activity                 material into waters of the United States             constructed, they may not be waters of
                                               will result in minimal adverse effects.                 for the maintenance of stormwater                     the United States and subsequent
                                                  One commenter expressed support for                  management facilities. Therefore, this                maintenance may not require further
                                               the proposed modifications. One                         NWP authorizes maintenance activities                 Department of the Army authorization.
                                               commenter suggested that the acreage                    involving discharges of dredged or fill               The jurisdictional status of these
                                               limit should be increased from 1⁄2-acre                 material if the stormwater management                 features will be determined by district
                                               to one acre to increase the utility and                 facility is not eligible for the waste                engineers on a case-by-case basis, after
                                               usefulness of this NWP. Several                         treatment system exclusion. A section                 applying the appropriate regulations
                                               commenters said this NWP should not                     404 permit is not required for a                      and guidance. The Corps of Engineers
                                               authorize new stormwater management                     discharge of dredged or fill material into            wetland delineation manual and the
                                               facilities. One commenter stated that the               a waste treatment system that qualifies               applicable regional supplement will be
                                               NWP should only authorize the                           for the waste treatment system                        used to determine whether a particular
                                               construction of an outfall structure. A                 exclusion at 33 CFR 328.3(a)(8).                      feature is a wetland under the definition
                                               couple of commenters said that this                        Several commenters supported the                   at 33 CFR 328.3(b). Many low impact
                                               NWP should be changed to clarify that                   addition of low impact development                    development integrated management
                                               only constructed wetlands may be used                   stormwater management features to the                 features may not have wetland
                                               to detain, retain, or treat stormwater.                 examples of activities authorized by this             hydrology because they are designed to
                                                  We do not agree that the acreage limit               NWP. One commenter said that while                    improve water infiltration. By
                                               for this NWP should be increased from                   the construction of low impact                        modifying this NWP to make it clear
                                               1⁄2-acre to one acre. The 1⁄2-acre limit is
                                                                                                       development stormwater management                     that it can be used to authorize
                                               necessary to ensure that this NWP                       features may need a Department of the                 discharges of dredged or fill material to
                                               authorizes only those activities that                   Army permit in some circumstances, the                construct low impact development
                                               result in minimal individual and                        maintenance of low impact                             integrated management features, we are
                                               cumulative adverse effects on the                       development stormwater management                     providing general permit authorization
                                               aquatic environment. The construction                   features does not require a section 404               for activities that will help state and
                                               of new stormwater management                            permit. This commenter also stated that               local entities comply with the total daily
                                               facilities may be authorized by this                    requiring Department of the Army                      maximum loads established for a
                                               NWP (if all other conditions are met),                  permits for maintenance activities in                 watershed or watershed. We do not
                                               because those activities often result in                watersheds that have total maximum                    believe it is necessary to define the term
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                                               minimal adverse environmental effects                   daily load requirements would result in               ‘‘low impact development stormwater
                                               and help protect the aquatic                            needless paperwork without any                        management features’’ in the Definitions
                                               environment by preventing or reducing                   environmental benefits. One commenter                 section of the NWPs because the text of
                                               the amount of pollutants that enter                     requested an explanation of the value of              the NWP provides examples of those
                                               streams, coastal waters, and other                      low impact development stormwater                     features. This NWP may authorize some
                                               aquatic habitats. Stormwater                            management facilities and examples of                 minor bank stabilization associated with
                                               management facilities are an important                  those facilities that may be authorized               the construction of a stormwater


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                                               10226                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               management facility. Bank protection                    databases, to help make the minimal                   specific conditions to the NWP
                                               may be authorized by this NWP or                        adverse effects determination.                        authorization to protect waters of the
                                               another appropriate NWP.                                   Some commenters suggested                          United States from adverse effects due
                                                  One commenter asked whether this                     combining the maintenance component                   to contaminated materials.
                                               NWP authorizes discharges of dredged                    of this NWP with NWP 3 since both                        This NWP is reissued with the
                                               or fill material for the construction of                include maintenance activities. Another               modifications discussed above.
                                               new stormwater facilities in intermittent               commenter suggested limiting this NWP                    NWP 44. Mining Activities. We
                                               or ephemeral streams that are waters of                 to authorizing only the maintenance of                proposed to add the 300 linear foot limit
                                               the United States. One commenter                        stormwater management facilities                      for the loss of stream bed, which for
                                               recommended prohibiting the                             constructed and used for the primary                  intermittent and ephemeral stream beds
                                               construction of new stormwater                          purpose of providing stormwater                       can be waived by the district engineer
                                               management facilities in intermittent                   detention, retention and treatment.                   if he or she makes a written
                                               streams to avoid impacts to numerous                       As discussed above, we have                        determination concluding that the
                                               rare and threatened and endangered                      modified this NWP to clarify that Clean               activity will result in minimal adverse
                                               species. Another commenter said this                    Water Act Section 404 permits would                   effects.
                                               NWP should only authorize activities in                 not be required for maintenance                          One commenter requested the NWP
                                               ephemeral streams.                                      activities (or other discharges of dredged            be revoked due to the large scale of
                                                  We do not believe it is necessary to                 or fill materials) involving stormwater
                                                                                                                                                             these activities and their impacts on
                                               limit the construction of new                           management facilities that qualify for
                                                                                                                                                             water quality. One commenter said this
                                               stormwater management facilities to                     the waste treatment system exclusion at
                                                                                                                                                             NWP should only authorize mining
                                               ephemeral streams. District engineers                   33 CFR 328.3(a)(8) because these are
                                                                                                                                                             activities that have been permitted by
                                               will review pre-construction                            excluded from the definition of waters
                                                                                                                                                             state agencies. This commenter also
                                               notifications and determine whether the                 of the United States. We do not believe
                                                                                                                                                             stated that this NWP should not
                                               proposed activities will have minimal                   it is necessary to combine maintenance
                                                                                                                                                             authorize peat mining or in-stream
                                               adverse effects on intermittent and                     authorized by NWP 43 with the
                                                                                                                                                             gravel mining. One commenter
                                               ephemeral streams. Activities                           maintenance activities authorized by
                                                                                                                                                             recommended expanding the categories
                                               authorized by this NWP must also                        NWP 3, since NWP 3 authorizes a
                                               comply with general condition 18,                       variety of maintenance activities. Some               of applicable waters to include tidal
                                               Endangered Species. State-listed rare                   stormwater management facilities may                  waters, since the term ‘‘adjacent’’ has
                                               species may be further protected                        have purposes or uses other than                      not been adequately defined.
                                               through the establishment of regional                   stormwater detention, retention or                       The terms and conditions of this
                                               conditions by division engineers, after a               treatment, so maintenance should still                NWP, including the addition of the 300
                                               public notice and comment process.                      be authorized by this NWP, if a section               linear foot limit for the loss of stream
                                                  Several commenters objected to                       404 permit is required and the activity               bed, help ensure that the NWP
                                               allowing the district engineer to waive                 results in minimal adverse effects on the             authorizes only those activities that
                                               the 300 foot limit for the loss of                      aquatic environment.                                  have minimal individual and
                                               intermittent or ephemeral stream bed.                      One commenter suggested that if a                  cumulative adverse effects on the
                                               Another commenter suggested                             development project is required to                    aquatic environment. Division engineers
                                               increasing the linear limit for the loss of             install stormwater management                         can regionally condition this NWP to
                                               stream beds to 500 feet before requiring                facilities, the entire development should             restrict or prohibit its use in specific
                                               a waiver, to authorize more activities.                 be treated as the ‘‘area of potential                 waters or categories of waters, or in
                                               Several commenters stated the waiver                    effects’’ for the purposes of compliance              particular geographic regions. After
                                               provision should be removed and losses                  with Section 106 of the National                      reviewing a pre-construction
                                               of waters of the United States should be                Historic Preservation Act. One                        notification, the district engineer may
                                               limited to 1⁄2-acre or 300 linear feet of               commenter recommended requiring any                   add activity-specific conditions to the
                                               stream bed. Another commenter stated                    contaminated materials to be properly                 NWP authorization to require water
                                               that no waivers should be allowed                       handled and disposed of.                              quality management measures so that
                                               under any circumstances. One                               The permit area for section 106                    the activity causes only minimal
                                               commenter suggested that waivers for                    compliance will be determined by                      degradation of water quality (see general
                                               losses of intermittent and ephemeral                    applying the criteria in Appendix C of                condition 25, water quality), or he or
                                               stream beds not be issued until the                     33 CFR part 325, the Corps Regulatory                 she may exercise discretionary authority
                                               appropriate natural heritage resources                  Program’s procedures for the protection               and require an individual permit if it is
                                               database is consulted to inform the                     of historic properties, as well as the                not possible to reduce the adverse
                                               minimal adverse impact determination.                   interim guidance issued on April 25,                  effects so that they are no more than
                                                  We are retaining the provision                       2005, and January 31, 2007. In general,               minimal. Division engineers may also
                                               allowing district engineers to waive the                as is made clear in these regulations and             regionally condition this NWP to
                                               300 linear foot limit for the loss of                   guidance, the Corps does not agree that               prohibit or restrict peat mining or in-
                                               intermittent and ephemeral streams,                     the area of potential effects for an NWP              stream gravel mining. We do not agree
                                               upon making a written determination                     that is needed for a discharge involving              that the NWP should be expanded to
                                               that the discharge will result in minimal               one aspect of a development project                   authorize discharges of dredged or fill
                                               adverse effects. The 300 linear foot limit              necessarily encompasses the entire                    material into tidal waters, since such
                                               should not be increased to 500 linear                   project, though this may be true in                   activities may result in more than
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                                               feet, to ensure that any loss of perennial              individual cases depending on the facts               minimal adverse effects on the aquatic
                                               stream bed results in no more than                      and circumstances. Compliance with                    environment. The term ‘‘adjacent’’ is
                                               minimal individual and cumulative                       general condition 20, Historic                        defined in the Corps regulations at 33
                                               adverse effects on the aquatic                          Properties, is required for activities                CFR 328.3(c) and is used to identify
                                               environment. District engineers may use                 authorized by this NWP. In response to                wetlands that are waters of the United
                                               available information, including state or               a pre-construction notification, the                  States by virtue of being adjacent to
                                               local natural heritage resources                        district engineer may add activity-                   jurisdictional waters.


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10227

                                                  Many commenters opposed adding                       channel to a previous course within the               General condition 17, Tribal rights,
                                               the 300 linear foot limit for the loss of               stream channel migration zone. One                    prohibits the impairment of reserved
                                               stream bed and stated that the 300 linear               commenter suggested modifying this                    tribal rights such as reserved water
                                               foot limit should not apply to smaller                  NWP to limit it to reconfiguring the                  rights and treaty fishing and hunting
                                               tributaries. One commenter                              affected area, and not authorize                      rights. We have retained the proposed
                                               recommended increasing the linear foot                  increases to the size of structures or                changes to the Note at the end of this
                                               limit to 500 feet. One commenter said                   fills. Another commenter supported                    NWP. This NWP provides separate
                                               the proposed linear foot limit would                    allowing dredging or excavation in all                authorization for discharges of dredged
                                               have the effect of preventing mining of                 waters of the United States under this                or fill material that are necessary to
                                               more than one million tons of mineable                  NWP in conjunction with the repair of                 repair uplands that have been damaged
                                               reserves. One commenter stated that                     uplands.                                              by discrete events, including the
                                               waivers to the 300 linear foot limit                       We do not believe that it is necessary             placement of fills necessary to stabilize
                                               should not be issued without evaluating                 to impose a 1⁄2-acre limit to this NWP,               the bank. Unlike NWP 13, this NWP
                                               documented natural heritage resources                   because it limits the repair of uplands               limits bank stabilization so that it does
                                               located in the project area.                            to the contours, or ordinary high water               not exceed the land contours that
                                                  As stated above, the 300 linear foot                 mark, that existed before the damage                  existed before the damage occurred.
                                               limit is being added to help ensure that                occurred. This NWP also limits                        Nationwide permit 13 may be used in
                                               the NWP authorizes only those activities                dredging to the minimum necessary to                  conjunction with this NWP to authorize
                                               that result in minimal adverse effects on               restore the damaged uplands, and does                 bank stabilization for restored uplands
                                               the aquatic environment and other                       not authorize significant alterations to              in cases where it is not practicable to
                                               applicable public interest review                       pre-event bottom contours of the                      limit bank stabilization to the pre-event
                                               factors. Increasing the linear foot limit               waterbody. The minor fills authorized                 ordinary high water mark or contours.
                                               for the loss of stream bed to 500 feet                  by this NWP are unlikely to                              The NWP is reissued as proposed.
                                               increases the likelihood that these                     substantially alter stream migration.                    NWP 46. Discharges in Ditches. We
                                               mining activities would result in more                  Because this NWP is limited to restoring              did not propose any changes to this
                                               than minimal adverse effects and                        uplands to pre-event configurations, it               NWP. Most commenters asked why this
                                               therefore not comply with the                           does not authorize more than minimal                  permit was needed since upland ditches
                                               requirements of Section 404(e) of the                   changes in the size of structures or fills            are not subject to Clean Water Act
                                               Clean Water Act. Mining activities that                 that may be constructed on or near                    jurisdiction, and any discharges of
                                               do not qualify for NWP authorization                    uplands.                                              dredged or fill material into these
                                               may be authorized by individual                            One commenter said that fills should               ditches are exempt by statute under
                                               permits or other general permits, such                  be limited to the post-event ordinary                 Section 404(f) of the Clean Water Act.
                                               as regional general permits issued by                   high water mark. Another commenter                    Some commenters noted that the Corps
                                               district engineers. District engineers will             made a similar recommendation, but                    does not assert Clean Water Act
                                               evaluate appropriate information before                 suggested that an exception should be                 jurisdiction over many upland ditches
                                               waiving the 300 linear foot for losses of               provided in cases where there is a need               and should not attempt to regulate these
                                               intermittent or ephemeral stream bed,                   to respond to immediate threats to a                  ditches by reissuing this NWP.
                                               which may include state natural                         primary structure or to infrastructure.                  This NWP authorizes discharges of
                                               heritage resource databases. In areas                      We do not agree that fills should be               dredged or fill material into a specific
                                               where district engineers have                           limited to the post-event ordinary high               category of ditches (i.e., those non-tidal
                                               designated state natural heritage sites as              water mark. The purpose of this NWP is                ditches that meet all four criteria in the
                                               critical resources, compliance with                     to authorize discharges of dredged or fill            first paragraph of the NWP), if those
                                               general condition 22, designated critical               material into waters of the United States             ditches have been determined to be
                                               resource waters will protect those                      for the repair of uplands that have been              waters of the United States. Section
                                               natural heritage sites.                                 damaged by discrete events and have                   404(f) of the Clean Water Act only
                                                  This NWP is reissued as proposed.                    minimal adverse effects on the aquatic                exempts discharges of dredged or fill
                                                  NWP 45. Repair of Uplands Damaged                    environment. In some cases, it may not                material for the construction or
                                               by Discrete Events. We proposed to                      be practicable to limit fills to where the            maintenance of irrigation ditches, or the
                                               modify this NWP to clarify that it does                 new ordinary high water mark is                       maintenance of drainage ditches, while
                                               not authorize beach restoration. We also                located, in cases where the discrete                  this NWP authorizes a different set of
                                               proposed to change the Note, to make it                 event changes the location of the                     activities which would require a Section
                                               clear that the NWP authorizes                           ordinary high water mark.                             404 permit. For example, this NWP
                                               discharges of dredged or fill material                     One commenter said that Tribes                     authorizes discharges of dredged or fill
                                               into waters of the United States                        should be notified to avoid impacts to                material that may completely fill the
                                               associated with the restoration of                      Tribal treaty natural resources and                   specific category of upland ditch
                                               uplands.                                                cultural resources. Two commenters                    described in the NWP, if that ditch is
                                                  One commenter requested that a 1⁄2-                  supported the proposed changes to the                 determined to be a water of the United
                                               acre limit be placed on activities                      Note. One commenter stated that all                   States after either the Corps or EPA
                                               authorized under this NWP. One                          bank stabilization authorized by this                 makes a jurisdictional determination.
                                               commenter said that authorizing                         NWP must also satisfy the terms and                      We recognize that many ditches
                                               activities under this NWP within                        conditions of NWP 13.                                 constructed in uplands are not waters of
                                               channel migration zones can have more                      Division engineers can regionally                  the United States, but there are some
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                                               than minimal adverse environmental                      condition this NWP to identify areas                  ditches constructed in uplands that may
                                               effects and impair stream functions if                  where there are Tribal treaty natural and             be determined to be waters of the
                                               those activities attempt to force a stream              cultural resources, so that consultation              United States after evaluating the
                                               back into previously occupied channels.                 can be conducted with those Tribes to                 specific characteristics of those ditches.
                                               This commenter said the NWP should                      ensure that impacts to those resources                The preamble to the Corps November
                                               be conditioned to prohibit fills that                   are appropriately considered during                   13, 1986, final rule states the non-tidal
                                               would attempt to move the stream                        review of pre-construction notifications.             drainage and irrigation ditches


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                                               10228                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               excavated on dry land are generally not                 pipeline leaks, pressure malfunctions,                requirements for all activities that did
                                               considered to be waters of the United                   natural disaster damage, terrorist                    not require pre-construction
                                               States, but the Corps and EPA reserve                   threats, or other events that pose a                  notification, stating that the paperwork
                                               the right on a case-by-case basis to                    danger to public safety. One commenter                was unnecessary given the current
                                               determine whether a particular                          suggested issuing a new NWP to                        regulation of the industry by other
                                               waterbody is a water of the United                      authorize activities licensed by the                  entities, such as state and local
                                               States (see 51 FR 41217). Joint guidance                Federal Energy Regulatory                             governments. One commenter said that
                                               issued in December 2008 by EPA and                      Commission’s blanket certificate                      the reporting requirements should be
                                               the Corps provides additional                           program.                                              maintained to ensure protection of
                                               clarification as to when ditches are and                   Existing NWPs, such as NWPs 3 and                  resources. Other commenters suggested
                                               are not considered to be waters of the                  12, may be used to authorize discharges               that pre-construction notification
                                               United States (see http://water.epa.gov/                of dredged or fill material or structures             should be required for all activities.
                                               lawsregs/guidance/wetlands/upload/                      or work in navigable waters of the                    Several commenters said that the NWP
                                               2008_12_3_                                              United States associated with pipeline                should only authorize maintenance
                                               wetlands_CWA_Jurisdiction_                              inspections and repairs. Some of these                activities. One commenter stated that
                                               Following_Rapanos120208.pdf; p. 12).                    activities do not require pre-                        shellfish aquaculture methods are
                                                  Some commenters said there are                       construction notification to qualify for              sufficiently different for the species
                                               impacts to upland ditches that could                    NWP authorization. There are other                    cultivated that issuing a single NWP to
                                               impair water quality downstream and                     approaches available, such as                         authorize these activities is
                                               that compensatory mitigation should be                  emergency permitting procedures, to                   inappropriate. Another commenter said
                                               required to minimize adverse effects                    allow emergency repair activities that                that all commercial shellfish
                                               caused by activities authorized by this                 do not qualify for general permit                     aquaculture activities should be
                                               NWP. One commenter recommended                          authorization to proceed if there is ‘‘an             authorized under one NWP. Two
                                               that district engineers evaluate impacts                unacceptable hazard to life, a significant            commenters stated that the NWP should
                                               to natural heritage resources during                    loss of property, or an immediate,                    only authorize harvesting that occurs by
                                               their review of pre-construction                        unforeseen, and significant economic                  hand. One commenter stated that these
                                               notifications.                                          hardship’’ (see 33 CFR 325.2(e)(4)). We               activities may impact tribal fishery
                                                  For those activities authorized by this              do not believe it is necessary to develop             access and fishing rights, and
                                               NWP, the district engineer will review                  a new NWP to authorize activities that                coordination with the affected tribes
                                               the pre-construction notification and                   are granted blanket certificates by the               should be required.
                                               determine whether the activity results                  Federal Energy Regulatory Commission.
                                               in only minimal adverse effects,                        Many of these activities may be                          We have reissued this NWP and made
                                               including whether compensatory                          authorized by existing NWPs, such as                  several changes. Properly sited,
                                               mitigation is necessary to ensure that                  NWPs 3 and 12.                                        operated, and maintained commercial
                                               the authorized activity results in                         This NWP is not reissued.                          shellfish aquaculture activities support
                                               minimal adverse effects on the aquatic                     NWP 48. Commercial Shellfish                       populations of shellfish that provide
                                               environment, including water quality.                   Aquaculture Activities. We proposed to                important ecological functions and
                                               During the review of a pre-construction                 modify this NWP by removing the                       services for coastal waters, and should
                                               notification, the district engineer may                 reporting requirement, which applied to               be authorized by a single NWP. We have
                                               consult natural heritage resource                       all activities that did not require pre-              removed the reporting requirements for
                                               databases to more effectively evaluate                  construction notification. We also                    this NWP and substantially reduced the
                                               the potential adverse effects on the                    proposed to add the information                       number of pre-construction notification
                                               aquatic environment.                                    previously required in that report to the             thresholds. Division engineers may
                                                  This NWP is reissued as proposed.                    PCN information requirements. This                    regionally condition this NWP to
                                                  NWP 47. Pipeline Safety Program                      information includes: A map showing                   establish additional pre-construction
                                               Designated Time Sensitive Inspections                   the boundaries of the project area, with              notification thresholds if necessary to
                                               and Repairs. We proposed to not                         latitude and longitude coordinates for                ensure that this NWP authorizes only
                                               reauthorize this NWP because it was                     each corner of the project area; the                  those activities that have minimal
                                               issued in 2007 in reliance on the                       name(s) of the cultivated species; and                adverse effects on the aquatic
                                               development of the Pipeline Repair and                  whether canopy predator nets are being                environment. We do not agree that pre-
                                               Environmental Guidance System                           used. In addition, we proposed to                     construction notification should be
                                               (PREGS) by the Pipeline and Hazardous                   remove the pre-construction notification              required for all activities authorized by
                                               Materials Safety Administration. Since                  requirement for changes in species                    this NWP, because these activities are
                                               PREGS was not developed and                             cultivated, as long as those species had              regulated by a number of other
                                               deployed, and paragraph (h) of the NWP                  been previously cultivated in the                     government agencies, especially at the
                                               required permittees to use PREGS to                     waterbody. We proposed to modify this                 federal and state government levels. In
                                               submit post-construction reports, no                    NWP to authorize activities associated                addition, the discharges of dredged or
                                               activity could be authorized by NWP 47.                 with the expansion of existing                        fill material into waters of the United
                                                  Two commenters asked why this                        commercial shellfish aquaculture                      States authorized by this NWP will
                                               NWP was not proposed to be reissued.                    operations. We requested comments on                  result in minimal adverse
                                               Three commenters agreed with allowing                   modifying this NWP or issuing a new                   environmental effects to the
                                               the NWP to expire and supported the                     NWP to authorize new commercial                       environmental criteria established
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                                               Corps position that designated time                     shellfish aquaculture activities.                     under the Clean Water Act. The
                                               sensitive inspections and repairs can be                   Many commenters said the NWP                       shellfish populations supported by the
                                               authorized under NWP 3, Maintenance                     should be reissued, and recommended                   activities authorized by this NWP help
                                               and NWP 12, Utility Line Activities.                    many changes. Several commenters                      support the objective of the Clean Water
                                               One commenter said that there should                    stated that this NWP should not be                    Act because they improve water quality
                                               be an NWP to authorize emergency                        reissued. Most commenters expressed                   through the conversion of nutrients into
                                               repair activities to fix natural gas                    support for removing the reporting                    biomass (i.e., shellfish growth) and the


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10229

                                               removal of suspended materials through                  permittee to implement measures to                    commercial shellfish aquaculture
                                               filter feeding. Commercially grown                      prevent the spread of aquatic nuisance                activities undertaken by states, local
                                               shellfish also provide some habitat                     species, such as prohibiting the transfer             governments, and non-governmental
                                               functions for the aquatic environment.                  of materials used for commercial                      organizations. Shellfish seeding
                                               Impacts to submerged aquatic vegetation                 shellfish aquaculture activities from one             activities to improve shellfish
                                               will, in many cases, be evaluated                       project site to another unless                        populations may be authorized by NWP
                                               through the pre-construction                            appropriate measures have been taken                  27. Small recreational shellfish
                                               notification review process. For                        to ensure that those materials are free of            aquaculture activities may be authorized
                                               commercial shellfish aquaculture                        aquatic nuisance species. This                        by other applicable NWPs, such as NWP
                                               activities in new project areas, adverse                commenter said a note should be added                 4. Other recreational shellfish
                                               effects to submerged aquatic vegetation                 to the NWP, to prohibit the transfer of               aquaculture activities may be authorized
                                               will be minimal because of the 1⁄2-acre                 equipment used in commercial shellfish                by regional general permits or
                                               limit. Impacts to coastal aquatic habitat               aquaculture activities from one                       individual permits. Restoration
                                               and species of concern in those habitats                waterbody to another waterbody, unless                aquaculture activities may be authorized
                                               are more appropriately addressed                        that equipment has been allowed to dry                by NWP 27.
                                               through consultation conducted under                    out for a minimum of 90 days or treated                  One commenter stated that the
                                               the Essential Fish Habitat provisions of                in accordance with a regional aquatic                 structures and fill activities authorized
                                               the Magnuson-Stevens Fishery                            nuisance control plan, to prevent the                 by the NWP were too broad and should
                                               Conservation and Management Act and/                    introduction of aquatic nuisance species              be refined. This commenter
                                               or Section 7 of the Endangered Species                  into the other waterbody.                             recommended prohibiting the long-term
                                               Act.                                                       We have modified this NWP to                       use of trays if sediment is compacted
                                                  We do not agree that the NWP should                  provide more flexibility in the species               and diversity is diminished. One
                                               be limited to hand harvesting activities.               cultivated, specifically, to allow the                commenter said that structures and fill
                                               We have retained the pre-construction                   cultivation of nonindigenous species as               should be limited to shell spat only,
                                               notification requirement for activities                 long as those species have been                       while another commenter stated that
                                               involving dredge harvesting, tilling, or                previously cultivated in the waterbody.               shell planting should be allowed on any
                                               harrowing in areas inhabited by                         We recognize that there has been                      size parcel without pre-construction
                                               submerged aquatic vegetation. General                   commercial production of                              notification.
                                               condition 17, tribal rights, states that                nonindigenous species over many years                    The structures and fills authorized by
                                               NWP activities may not impair reserved                  in certain waterbodies, and activities                this NWP are limited to those necessary
                                               tribal rights, including treaty fishing and             requiring Department of the Army                      to conduct commercial shellfish
                                               hunting rights. In addition, division                   authorization associated with those                   aquaculture activities. We have retained
                                               engineers may regionally condition this                 commercial operations should be                       the provision that states that the NWP
                                               NWP to identify areas where Tribes                      authorized by this NWP. We have                       does not authorize attendant features
                                               must be notified of these activities and                retained the prohibitions against                     such as docks, piers, boat ramps,
                                               government-to-government consultation                   cultivating aquatic nuisance species                  stockpiles or staging areas, or the
                                               conducted to avoid or minimize impacts                  defined by the Nonindigenous Aquatic                  deposition of shell material back into
                                               to tribal fishery access and fishing                    Nuisance Prevention and Control Act of                waters of the United States as waste. We
                                               rights.                                                 1990. We have also added Note 2 to the                have removed the pre-construction
                                                  One commenter said that the                          NWP, to reduce the risk of introducing                notification threshold for commercial
                                               restoration of indigenous species would                 aquatic nuisance species by requiring                 shellfish aquaculture activities that are
                                               be prevented if cultivation was limited                 treatment of materials taken from one                 more than 100 acres in size, because we
                                               to only those species that were                         waterbody to another in accordance                    do not believe it is necessary to require
                                               previously commercially cultivated.                     with the applicable regional aquatic                  pre-construction notification for existing
                                               Another commenter recommended                           nuisance species management plan.                     operations with a valid lease, permit, or
                                               requiring pre-construction notification if              Division engineers may add regional                   other appropriate instrument that has
                                               there were a proposed change in species                 conditions to the NWP to make                         been approved by the appropriate state
                                               cultivated that was not part of a state-                permittees aware of the regional aquatic              or local government agency, unless the
                                               approved list. Some commenters                          nuisance species management plan that                 activity triggers any of the pre-
                                               suggested that pre-construction                         may be applicable to NWP 48 activities.               construction notification thresholds.
                                               notification should not be required for                    We agree that pre-construction                        One commenter requested changes to
                                               changes in harvesting methods. Another                  notification should not be required for               the definition of shell seeding, citing
                                               commenter said that pre-construction                    changes in harvesting methods because                 concerns over the use of potentially
                                               notification should be required if the                  harvesting methods have temporary                     environmentally damaging materials.
                                               culture method changed from bottom                      impacts and result in minimal adverse                 Another commenter supported the use
                                               culture to floating or suspended culture                effects. A possible exception is dredge               of terms such as ‘‘suitable substrate’’
                                               to allow district engineers to evaluate                 harvesting in areas inhabited by                      and ‘‘appropriate materials’’ due to the
                                               potential navigation issues. One                        submerged aquatic vegetation, which                   decreasing availability of shell cultch
                                               commenter indicated that the NWP                        still requires pre-construction                       and new research and development
                                               should authorize demonstration projects                 notification. We also agree that pre-                 regarding materials. One commenter
                                               less than one acre in size and another                  construction notification should be                   said that use of the term ‘‘submerged
                                               said that non-commercial shellfish                      required if the grower proposes to                    aquatic vegetation’’ allowed for the
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                                               aquaculture activities should be                        change from bottom culture to floating                destruction of eelgrass, because eelgrass
                                               authorized, since states, local                         or suspended culture in a project area,               is often not inundated with tidal waters.
                                               governments, and non-governmental                       or if it is an activity in a new project              One commenter asked whether
                                               organizations engage in recreational and                area that requires the installation and               traditional oyster culture practices were
                                               commercial aquaculture. One                             use of floating or suspended gear, so                 of special concern.
                                               commenter recommended adding a                          that effects to navigation can be                        The definition of the term ‘‘shellfish
                                               provision that would require the                        evaluated. This NWP authorizes                        seeding’’ in the Definitions section of


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                                               10230                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               the NWP provides examples of                            commercial shellfish production. The                  construction notification unless the
                                               appropriate materials that may be used                  project area may also be based on rights              activities involve dredge harvesting,
                                               for shellfish seeding activities. Through               to conduct shellfish aquaculture that are             tilling, or harrowing in areas of
                                               the issuance of regional conditions,                    established by treaty, such as treaties               submerged aquatic vegetation. If the
                                               division engineers can restrict or                      executed between the United States                    lease holder’s operations within the
                                               prohibit the use of certain materials for               Government and Indian Tribes. Project                 200-acre project area change from one
                                               shellfish seeding. In response to a pre-                area may also be identified through an                on-bottom technique to another on-
                                               construction notification, district                     easement, lease, deed, or contract which              bottom technique, pre-construction
                                               engineers may add activity-specific                     establishes an enforceable property                   notification is not required. However, if
                                               conditions to an NWP authorization to                   interest to conduct aquaculture                       the operations are proposed to change
                                               prohibit the use of certain materials for               activities on subtidal or intertidal lands.           from an on-bottom culture method to a
                                               shellfish seeding. Eelgrass is commonly                    We have removed the pre-                           floating or suspended culture method,
                                               considered to be a species of submerged                 construction notification requirement                 pre-construction notification is
                                               aquatic vegetation and we intend it to be               for relocating existing operations into               required. Lastly, if an operator obtains a
                                               covered by the provisions regarding                     portions of the project area not                      lease for a new project area and wishes
                                               submerged aquatic vegetation,                           previously used for aquaculture                       to conduct any commercial shellfish
                                               regardless of whether it is fully                       activities, since the permit or lease                 aquaculture activities in the new project
                                               submerged in all tidal conditions or not.               issued by the state or local government               area, pre-construction notification is
                                                 Many commenters requested                             agency has already authorized that area               required.
                                               clarification as to when pre-construction               for use in commercial shellfish                          One commenter said that requiring
                                               notification is required and what                       aquaculture. There is no need to address              pre-construction notification for
                                               constitutes a project area for the                      expansions in this NWP if the proposed                aquaculture relocation and expansion is
                                               purposes of this NWP. Several                           expansions are within the project area                unnecessary if the area is already leased
                                               commenters recommended that pre-                        authorized by the state or local                      but transferred to another owner.
                                               construction notifications should only                  government lease or other appropriate                 Another commenter recommended that
                                               be required once and not for each                       instrument. For example, pre-                         any NWP authorizations should still be
                                               subsequent reissuance of this NWP if                    construction notification is not required             valid when the lease is transferred to
                                               the commercial shellfish aquaculture                    if an operator who is only working on                 another operator and use has not
                                               operation has not changed. One                          30 acres of a 200-acre project area                   changed. One commenter stated that
                                               commenter asked if the lease holder is                  decides to conduct operations beyond                  pre-construction notification should not
                                               required to provide pre-construction                    those 30 acres within the 200 acre                    be required for expansions into newly
                                               notifications annually if the lease covers              project area.                                         leased areas since the site conditions are
                                               an area greater than 100 acres. One                        We have removed the pre-                           usually the same.
                                               commenter inquired whether pre-                         construction notification threshold for                  Pre-construction notification is not
                                               construction notification is required                   project areas greater than 100 acres.                 required for expansions of commercial
                                               when the operator is only working on 30                 Since we have limited the pre-                        shellfish activities as long as the
                                               acres of a 200-acre project site. One                   construction notification thresholds to               expansion occurs within the project area
                                               commenter said that multiple pre-                       focus on activities that may adversely                specified by an permit, lease, or other
                                               construction notifications should not be                affect submerged aquatic vegetation and               instrument issued by the appropriate
                                               required from a lease holder that has                   changes in operations that may                        state or local agency, and as long as
                                               multiple 100-acre leases; instead, one                  adversely affect navigation or involve                none of the pre-construction notification
                                               pre-construction notification should                    species not previously cultivated in the              thresholds are triggered. This would
                                               cover all those leases.                                 waterbody, most on-going activities will              apply to an activity in a new location
                                                 We have reduced the number of pre-                    not require pre-construction                          within the project area, or to an activity
                                               construction notification thresholds in                 notification, thereby substantially                   that would utilize a larger acreage of the
                                               this NWP. The pre-construction                          decreasing the paperwork burden on                    project area, as long as none of those
                                               notification thresholds in this NWP                     current commercial shellfish                          activities require pre-construction
                                               focus on those activities that should be                aquaculture operators. The lease holder               notification. If an activity is proposed by
                                               reviewed by district engineers to:                      is not required to provide a pre-                     an operator in a new project area,
                                               (1) Ensure that floating or suspended                   construction notification annually no                 however, pre-construction notification
                                               aquaculture facilities do not cause more                matter what the size of the project area              is required. An NWP verification can be
                                               than minimal adverse effects on                         as long as the lease holder has a valid               transferred to a new project proponent,
                                               navigation or, (2) ensure that both                     lease, permit, or other appropriate                   if he or she has obtained an interest in
                                               cultivating species that have not been                  instrument that has been approved by                  the subtidal or intertidal lands,
                                               previously cultivated in the waterbody                  the appropriate state or local                        provided appropriate procedures are
                                               and dredge harvesting, tilling, or                      government agency for the project area,               followed for the transfer of the NWP
                                               harrowing in areas of submerged aquatic                 and none of the pre-construction                      verification (see general condition 29,
                                               vegetation do not cause more than                       notification thresholds are triggered. For            transfer of nationwide permit
                                               minimal adverse effects on the aquatic                  example, pre-construction notification                verifications).
                                               environment.                                            is not required if the lease holder is only              One commenter asked whether or not
                                                 To support our objective to be more                   working within an existing authorized                 an NWP verification can be issued prior
                                               consistent with state and local agencies                200-acre project area no matter how                   to a state issuing a lease. Another
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                                               that regulate commercial shellfish                      much or little of that area is cultivated.            commenter said that NWP 48 should be
                                               aquaculture activities, we have                         However, if the lease holder proposes to              delegated to the states who issue leases
                                               redefined project area so that it is based              cultivate a species of oyster in the 200-             to reduce duplicative paperwork. One
                                               on leases or permits issued by an                       acre project area not currently present in            commenter stated that pre-construction
                                               appropriate state or local government                   the waterbody, pre-construction                       notification should not be required
                                               agency that is responsible for allocating               notification would be required. The                   when a state already evaluates impacts
                                               subtidal or intertidal lands for                        activities also do not require pre-                   to submerged aquatic vegetation prior to


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                            10231

                                               granting leases. Another commenter                      National Oceanic and Atmospheric                      These activities are subjected to an
                                               said that certain states do not issue                   Administration to streamline the review               extensive amount of regulation at the
                                               leases in areas with submerged aquatic                  and approval of aquaculture projects.                 Federal and state government levels,
                                               vegetation, so it is not necessary for the              Some commenters said that the                         and often the local government level.
                                               Corps to address that issue.                            commercial shellfish aquaculture                      The introduction of invasive species can
                                                  The district engineer may issue an                   industry is not sufficiently regulated at             occur through many mechanisms, and
                                               NWP verification before the state makes                 the local, state, or federal level. One               the types of species approved for
                                               its decision on a lease application. It is              commenter said that enforceable                       commercial aquaculture activities are
                                               necessary to respond to a complete pre-                 conditions need to be added to NWP 48                 regulated. This NWP does not authorize
                                               construction notification within 45 days                authorizations to protect the aquatic                 discharges of dredged or fill material or
                                               to retain the authority to add activity-                environment. One commenter                            structures or work in navigable waters
                                               specific conditions, which would                        recommended implementing a regional                   of the United States associated with the
                                               ensure that the NWP activity results in                 ecosystem-based management approach.                  cultivation of nonindigenous species
                                               minimal adverse effects on the aquatic                    We have worked closely with the                     that have not been previously cultivated
                                               environment. Since there is not                         National Oceanic and Atmospheric                      in the waterbody or the cultivation of
                                               consistent regulation of commercial                     Administration and other Federal                      aquatic nuisance species as defined in
                                               shellfish aquaculture activities among                  agencies to develop this NWP, and we                  the Nonindigenous Aquatic Nuisance
                                               all of the states, we do not agree that                 disagree that there is not already                    Prevention and Control Act of 1990.
                                               certain Federal interests, such as                      sufficient government oversight of these              Furthermore, division engineers may
                                               navigation and impacts to special                       activities at the various levels of                   add regional conditions to the NWP to
                                               aquatic sites, should be delegated to the               government. In response to a pre-                     require permittees to use specific
                                               states. In evaluating a pre-construction                construction notification, the district               practices that will prevent the spread of
                                               notification triggered by potential                     engineer may add activity-specific                    aquatic nuisance species. Such
                                               impacts to submerged aquatic                            conditions to the NWP authorization to                measures may vary, depending on the
                                               vegetation, the district engineer would                 ensure that the authorized activity                   species of concern and which
                                               consider any evaluation of such impacts                 results in minimal adverse effects on the             techniques would be the most effective
                                               that had been previously conducted by                   aquatic environment, individually and                 means to prevent the spread of such
                                               the state if this is submitted with the                 cumulatively. A regional ecosystem-                   species. Adverse effects that may result
                                               PCN.                                                    based management approach is more                     from geoduck cultivation are more
                                                  Many commenters expressed                            appropriately undertaken by Corps                     appropriately addressed by Corps
                                               concerns regarding impacts to species                   districts and interested Federal, State,              districts, since this activity is limited in
                                               protected under the Endangered Species                  and local government agencies, not at                 geographic scope. Division engineers
                                               Act, designated critical habitat, and                   the national level.                                   may regionally condition this NWP to
                                               essential fish habitat. One commenter                     Many commenters expressed concern                   restrict or prohibit its use to authorize
                                               asked if compliance with the                            regarding the environmental impacts                   discharges of dredged or fill material
                                               Endangered Species Act was required                     associated with expansions of                         into waters of the United States or
                                               for both existing and new activities.                   commercial shellfish aquaculture                      structures or work in navigable waters
                                               Another recommended that a detailed                     activities and for new activities. One                of the United States associated with
                                               eelgrass, macroalgae, and forage fish                   commenter said that expansion                         geoduck production.
                                               survey should be required for each pre-                 proposals should not be reviewed as                      Several commenters stated that the
                                               construction notification. One                          restoration activities since non-native               expansion of commercial shellfish
                                               commenter stated that NWP                               species are a serious threat. Several                 aquaculture activities will result in
                                               authorization should not be granted in                  commenters stated that the                            more than minimal cumulative adverse
                                               areas adjacent to forage fish or critical               environmental benefits do not offset the              effects and should not be authorized by
                                               habitat.                                                environmental impacts, introduction of                NWP. One commenter said that all
                                                  Activities authorized by this NWP                    invasive species, impacts to native                   activities authorized by this NWP
                                               must comply with general condition 18,                  species such as flatfish and other sandy              should require reporting to assess
                                               endangered species. Any new or                          bottom species, reduction of species                  cumulative effects. Another commenter
                                               existing activity that involves discharges              diversity, elimination of native animal               suggested that cumulative effects on
                                               of dredged or fill material or structures               and plant species, harassment and                     water quality should be evaluated for
                                               or work in navigable waters of the                      destruction of migrating birds, and the               water bodies with multiple aquaculture
                                               United States that might affect listed                  introduction of plastics. Other                       facilities.
                                               species or designated critical habitat                  commenters expressed concern                             As stated above, commercial shellfish
                                               require pre-construction notification to                regarding impacts from geoduck                        aquaculture activities provide habitat,
                                               the district engineer, so that Section 7                cultivation and harvesting on the                     water quality, and nutrient cycling
                                               consultation can be conducted. We do                    environment as well as on wild geoduck                functions and when properly sited,
                                               not agree that pre-construction                         populations, and the cultivation and                  operated, and maintained are unlikely
                                               notifications should include surveys for                harvesting of other non-native species.               to result in more than minimal
                                               eelgrass, microalgae, or forage fishes.                 Two commenters stated that geoduck                    cumulative adverse effects on the
                                               The district engineer may request                       cultivation and harvesting has only                   aquatic environment. Division engineers
                                               additional information from the project                 minimal impacts.                                      may restrict or prohibit use of this NWP
                                               sponsor if needed to conduct Section 7                    When properly sited, operated, and                  in geographic regions or specific
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                                               consultation. An activity may be                        maintained, commercial shellfish                      waterbodies where more than minimal
                                               authorized in critical habitat if a section             aquaculture activities generally result in            cumulative adverse effects may occur.
                                               7 biological opinion is issued and                      minimal adverse effects on the aquatic                   One commenter stated that shellfish
                                               impacts to critical habitat are                         environment and in many cases provide                 aquaculture activities have economic
                                               authorized.                                             environmental benefits by improving                   impacts that were not sufficiently
                                                  One commenter recommended that                       water quality and wildlife habitat, and               addressed in the draft decision
                                               the Corps work closely with the                         providing nutrient cycling functions.                 documents. For example, county and


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                                               10232                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               state health agencies are required to                   stated that shellfish farming is a good               responsible for granting such leases or
                                               regulate water quality, which costs                     gauge of water quality in an area since               permits) and the activity will not
                                               taxpayer money. This commenter said                     poor water quality necessitates closure               directly affect more than 1⁄2-acre of
                                               that changes to aesthetics associated                   of shellfish farms. In contrast, another              submerged aquatic vegetation beds. Pre-
                                               with expansion of these activities, such                commenter said the potential for                      construction notification is required for
                                               as noise, odor, and viewshed impacts                    aquaculture operations to harvest                     all commercial shellfish aquaculture
                                               should also be considered. Impacts to                   continuously as farm size increased                   activities in new project areas. Pre-
                                               recreational uses of the affected                       would result in permanently suspended                 construction notification is also
                                               waterbodies could occur if expansions                   particulates and increased turbidity                  required for activities in a project area
                                               greater than 100 acres in size are                      which would damage ecosystems.                        if they involve dredge harvesting,
                                               authorized. This commenter also said                       Changes in farming operations that                 tilling, or harrowing in areas inhabited
                                               that new and expanded operations                        may be related to commercial shellfish                by submerged aquatic vegetation or if
                                               should not be proposed in national                      aquaculture activities in nearby waters               the activities involve the change from
                                               parks or historic monuments, but                        is outside of the Corps regulatory                    bottom culture to floating or suspended
                                               existing operations should be allowed to                authority. Such issues are more                       culture in order to assess potential
                                               continue. The commenter also stated                     appropriately addressed by state or local             impacts to navigation. In addition,
                                               that any projects in river delta regions                governments, who have the primary                     general condition 14, proper
                                               should be carefully evaluated due to the                responsibility for land use decisions.                maintenance, requires the permittee to
                                               sensitive nature of these brackish                      We recognize that commercial shellfish                properly maintain any authorized
                                               environments.                                           aquaculture can help improve water                    structure or fill. Therefore, any
                                                  The draft decision documents briefly                 quality. Harvesting operations may                    authorized commercial shellfish
                                               discuss economics as one of the public                  increase turbidity, but we believe such               aquaculture activity and its associated
                                               interest review factors that are                        impacts are temporary and minor.                      equipment shall be properly maintained
                                               considered before the Corps issues a                       We received many comments in                       so as to not pose a hazard to navigation.
                                               permit, including a general permit.                     response to our proposal to consider                  The pre-construction notification
                                               Shellfish aquaculture activities, in                    issuing a new NWP or modifying NWP                    thresholds will provide an opportunity
                                               general, help improve water quality                     48 to authorize new commercial                        for district engineers to evaluate the
                                               because many of the commercially                        shellfish aquaculture activities. Many                potential adverse effects to navigation
                                               cultivated species are filter feeders that              commenters supported modifying NWP                    and vegetated shallows, conservation,
                                               remove nutrients and suspended                          48 to authorize new activities, and                   and other applicable public interest
                                               materials from the water column. By                     suggested terms and conditions. One                   review factors, and ensure that those
                                               removing nutrients, eutrophication and                  commenter recommended limiting new                    adverse effects are minimal. We agree
                                               similar water quality problems are                      activities to ten acres or less. One                  that commercial shellfish aquaculture
                                               lessened. Water quality benefits                        commenter stated that there should be                 activities can provide important
                                               provided by commercially grown                          no limits on new activities because                   functions and services to the aquatic
                                               shellfish help reduce costs of                          shellfish aquaculture has only minimal,               environment and should be authorized
                                               remediating local water quality                         short-term adverse environmental                      by NWP, with appropriate notification
                                               problems. Commercial shellfish                          impacts, and the shellfish themselves                 thresholds and limits. Division
                                               aquaculture activities have minimal                     provide valuable ecological services.                 engineers may regionally condition this
                                               adverse effects to aesthetics, and are                  Two commenters stated that all new                    NWP to restrict or prohibit its use in
                                               likely to result in little change in local              shellfish aquaculture activities except               specific waters or geographic areas, if
                                               baseline levels of noise, odor, or views                floating culture should be authorized                 there are concerns that these activities
                                               when compared to other waterfront uses                  under the NWP, because floating                       may have more than minimal adverse
                                               in coastal residential areas, such as                   facilities have potential to impact                   effects on certain species or specific
                                               private and commercial boats, as well as                navigation. One commenter said                        types of aquatic resources.
                                               the piers, wharves, marinas, and                        limitations on new activities should be                  This NWP is reissued with the
                                               anchorage or mooring areas where those                  imposed on NWP 48 and reconsidered                    modifications discussed above.
                                               vessels are kept. Coastal areas are used                when the proposal to reissue the NWPs                    NWP 49. Coal Remining Activities.
                                               by a wide variety of people. Effects on                 is developed in 2016. Other commenters                We proposed to clarify how the 40
                                               recreational uses of the waterbody                      said that new activities should not be                percent of newly mined area is
                                               should also be considered during the                    authorized by NWP because of their                    determined. We also proposed to
                                               review of specific commercial shellfish                 environmental impacts. Another                        modify the pre-construction notification
                                               aquaculture activities. Division                        commenter stated that new activities                  provision to require the prospective
                                               engineers may regionally condition this                 should not be authorized by NWP                       permittee to submit documentation
                                               NWP to restrict or prohibit its use to                  unless bottom culture methods are used                describing how the overall mine plan
                                               authorize new project areas and/or new                  (except for grow-out bags), harvesting is             will result in a net increase in aquatic
                                               activities in existing project areas in                 done by hand, and only native species                 resource functions.
                                               national parks or in the vicinity of                    are cultivated. One commenter stated                     Several commenters supported the
                                               historic monuments. The protection of                   that baseline habitat assessments should              reissuance of NWP 49 and said no
                                               waters near river deltas or other                       be provided and no operations should                  restrictions should be imposed because
                                               categories of waters is more                            occur within 180 feet of marine                       remining permits are one of the most
                                               appropriately accomplished through                      vegetation, eelgrass, or sand dollar beds.            significant tools to alleviate the
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                                               regional conditions imposed by division                    We are modifying NWP 48 to                         environmental effects of past mining
                                               engineers.                                              authorize commercial shellfish                        activities. Many commenters said this
                                                  One commenter stated that because                    aquaculture activities in new project                 NWP should not be reissued. Some of
                                               commercial shellfish aquaculture may                    areas, provided the project proponent                 these commenters stated that these
                                               be limited by farm runoff, increasing                   obtains a valid authorization (e.g., a                activities result in more than minimal
                                               production could require farmland to                    lease or permit from the appropriate                  cumulative adverse effects. Many
                                               cease in operation. Another commenter                   state or local government agency                      commenters objected to the lack of


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                                               limits for filling stream channels and                  apply for the U.S. Environmental                      environment. It is appropriate to
                                               said this NWP should not authorize the                  Protection Agency’s modified effluent                 authorize discharges of dredged or fill
                                               construction of valley fills or refuse fills.           limits developed specifically for                     material into waters of the United States
                                               Other commenters stated that the                        remining projects.                                    for some new mining activities, to
                                               functional increase associated with re-                    Project proponents who want to use                 provide an incentive to restore
                                               mining will still be insufficient to offset             this NWP must submit pre-construction                 unreclaimed mine lands, and provide
                                               adverse effects of filling stream beds and              notifications. The pre-construction                   net increases in aquatic resource
                                               that stream mitigation will not                         notification describes how the overall                functions. Impacts to the newly mined
                                               effectively replace lost stream functions.              mining plan will result in a net increase             area would not be categorized as
                                                  We believe authorizing remining of an                in aquatic resource functions. If there is            remining. Adverse effects to waters of
                                               unreclaimed site and requiring actions                  an appropriate functional assessment                  the United States associated with the
                                               to restore unreclaimed areas is one of                  protocol available for the types of                   new mining would be subject to the
                                               the most effective ways to reverse                      aquatic resources in that geographic                  general condition 23, mitigation, and
                                               degraded water quality in a watershed.                  area, project proponents are encouraged               the district engineer may add conditions
                                               Therefore, we have not imposed any                      to use that functional assessment                     to the NWP authorization to require
                                               new limits or restrictions on this NWP.                 protocol to demonstrate how the activity              mitigation located near the project site
                                               All activities authorized by this NWP                   will result in a net increase in aquatic              or out-of-kind mitigation to compensate
                                               must result in net increases in aquatic                 resource functions. The description of                for losses of aquatic resource functions.
                                               resource functions, which will help                     the proposed project required by                      Typical surface coal mining projects,
                                               manage cumulative effects on a                          paragraph (b)(3) of general condition 31              including remining, do not include
                                               watershed basis. Cumulative effects                     should describe the restoration that will             slurry impoundments, as these
                                               assessments have revealed the reduction                 take place on the project site. District              impoundments are typically associated
                                               in acid mine drainage and/or                            engineers may add activity-specific                   with the wastewater resulting from coal
                                               sedimentation in downstream segments                    conditions to this NWP to require more                processing plants. This NWP does not
                                               of stream channels has resulted in                      detailed restoration plans prior to                   authorize the construction of coal
                                               functional improvements in many                         discharging dredged or fill material into             processing plants.
                                               watersheds. The states of Ohio,                         waters of the United States, as well as                  Many commenters said the Corps is
                                               Pennsylvania, Virginia, and West                        monitoring plans that will be used to                 making the review process associated
                                               Virginia frequently use remining                        assess whether the remining and                       with NWP 49 more onerous, which will
                                               activities to reduce acid mine drainage                 associated reclamation activities are                 decrease the utility of the NWP, and
                                               and sedimentation and have data to                      resulting in net increases in aquatic                 should focus on the environmental
                                               demonstrate these improvements.                         resource functions. Supplemental                      benefits that can be realized from this
                                                  We do not believe this permit should                 compensatory mitigation may be                        nationwide permit.
                                               have linear foot or acreage limits, since               required in some instances, such as the                  The proposed changes to this NWP,
                                               this NWP authorizes discharges of                       implementation of mitigation projects                 which we are adopting, do not make it
                                               dredged or fill material into waters of                 near the project site, to remove or                   more difficult to use NWP 49. The
                                               the United States to reclaim previously                 reduce causes of aquatic resource                     requirement to provide information
                                               mined sites that were unreclaimed,                      impairment and ensure that the overall                with the pre-construction notification to
                                               abandoned, forfeited, and typically                     activity not only results in minimal                  explain how the overall activity will
                                               exhibit poor water quality and present                  individual and cumulative adverse                     result in net increases in aquatic
                                               safety hazards. These unreclaimed                       effects on the aquatic environment but                resource functions is necessary to
                                               mines may have unreclaimed highwalls,                   in a net increase in aquatic resource                 ensure compliance with the terms and
                                               unvegetated mine spoil, disconnected                    functions, as required by this NWP.                   conditions of the NWP. Clarification of
                                               stream segments, and/or pit                                Several commenters indicated the                   how to apply the 40 percent provision
                                               impoundments. We, as well as other                      general public should have the right to               to determine how much new area could
                                               state and federal agencies, recognize                   comment on the proposal before the                    be mined will provide consistency in
                                               that remining and reclaiming these areas                district engineer issues the NWP                      implementation. For example, a site
                                               is one of the most successful means for                 verification. One commenter said all                  may be proposed to be remined under
                                               improving water quality, because these                  activities associated with remining                   this NWP. If 30 acres of the site has been
                                               activities reduce sedimentation and acid                should require individual permits and                 previously mined and is proposed to be
                                               mine drainage. Due to advances in                       another commenter objected to                         remined, and 30 acres of the site is
                                               mining technology and equipment, it is                  combining unmined lands required for                  unmined and is necessary to make it
                                               now economically viable to remove coal                  restoration with previously mined lands               economically feasible to reclaim the
                                               from these unreclaimed and abandoned                    because that would categorize unmined                 remined area, then 40% of the
                                               mine sites. These sites can be combined                 land as unreclaimed land, and result in               combined acreage of the remined and
                                               with adjacent unmined areas to develop                  additional adverse environmental                      reclaimed areas, or 40% of 60 acres
                                               a project that is economically viable. In               effects. One commenter stated that                    which equals 24 acres, can be newly
                                               many cases the net result of combining                  slurry impoundments should not be                     mined. In another example, if you have
                                               remining of a previously mined site                     authorized by this NWP.                               a 1,000-acre site, and 600 acres are
                                               with new surface coal mining activities                    We believe these activities are                    affected by previously unreclaimed
                                               in adjacent areas is to facilitate                      appropriate for general permit                        mining activities and 200 acres are
                                               reclamation of the older mine site and                  authorization and should not require a                needed to reclaim the 600 acres, then
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                                               reduce acid mine drainage and sediment                  public notice and comment process.                    40% of 800 acres (the summation of the
                                               from the older mine site to downstream                  District engineers may assert                         previously unreclaimed mining
                                               stream segments. Furthermore, this                      discretionary authority and require an                activities site and the site needed to
                                               NWP provides an incentive to remine                     individual permit for proposed                        reclaim the previously mined site), or
                                               degraded areas, similar to the 1987                     activities if they believe those activities           320 acres may be newly mined. As there
                                               Rahall Amendments to the Clean Water                    will result in more than minimal                      are only 200 acres remaining at the
                                               Act, which enables mine operators to                    adverse effects on the aquatic                        1,000-acre site, those 200 acres may be


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                                               authorized under NWP 49 for newly                       of pits and highwalls, and reclamation                the 404(b)(1) Guidelines, and we have
                                               mined activities.                                       of sites without the use of public funds.             complied with the requirements at 40
                                                  One commenter said they did not                         We have focused this NWP on                        CFR 230.7. The cumulative effects
                                               understand the rationale for establishing               authorizing those activities that provide             analysis provided in the decision
                                               the threshold for newly mined areas at                  net increases in aquatic resource                     document in accordance with the
                                               40 percent, if removing the small                       functions. The consideration of overall               National Environmental Policy Act
                                               amount of remaining coal reserves will                  site improvements, increased safety, and              considers the effects of past actions, to
                                               be far more attractive to coal mine                     the lack of use of public funds is more               the extent that they have continuing
                                               operators if the percentage was                         appropriately addressed by other                      effects on the aquatic environment.
                                               increased to allow mining on larger                     agencies or programs.                                 Under the 404(b)(1) Guidelines, the
                                               areas of unmined lands. One commenter                      This NWP is reissued as proposed.                  cumulative effects analysis involves
                                               said the 40 percent limitation becomes                     NWP 50. Underground Coal Mining                    prediction of the number of discharges
                                               an obstacle when the remaining coal                     Activities. We proposed to place a 1⁄2-               likely to be regulated by a general
                                               seam is deep within the hillside and                    acre limit on this NWP, as well as a 300-             permit until its expiration (see 40 CFR
                                               large amounts of overburden require                     linear foot limit for losses of stream bed.           230.7(b)(3)). That regulation, as well as
                                               removal. This commenter suggested                       We also proposed a provision that                     40 CFR 230.11(g), does not state that the
                                               increasing the limit for newly mined                    allows district engineers to waive the                effects of past actions have to be
                                               areas to 50 or 60 percent to encourage                  300 linear foot limit for losses of                   considered for the purposes of the
                                               more restoration of unreclaimed areas.                  intermittent or ephemeral stream bed by               404(b)(1) Guidelines analysis, although,
                                               The commenter recommended adding a                      making a written determination                        as stated above, we have considered
                                               provision allowing district engineers to                concluding that the discharge of                      such effects in connection with our
                                               waive the 40 percent threshold in                       dredged or fill material will result in               NEPA analysis.
                                               certain situations, such as when the                    minimal adverse effects.                                 Several commenters stated that NWP
                                               operator receives an approved pollution                    Several commenters objected to the                 50 should not have any acreage and/or
                                               abatement plan with best management                     reissuance of this NWP, stating that it               linear foot limitations as these limits
                                               practices, the remining activity is                     authorizes activities with more than                  would essentially render the permit
                                               located in a completed Acid Mine                        minimal individual and cumulative                     unusable for underground mining
                                               Drainage Abatement Treatment                            adverse effects on the aquatic                        operations.
                                               watershed area, and watersheds with                     environment. Several commenters                          We do not agree that the 1⁄2-acre limit
                                               established total daily maximum loads.                  stated that activities authorized by this             and the 300 linear foot limit for stream
                                               Several commenters objected to the                      NWP will result in the loss of stream                 bed losses make this NWP unusable.
                                               provision stating that the Corps would                  functions and adversely impact water                  This NWP authorizes discharges of
                                               consider the SMCRA agency’s decision                    quality downstream of the mine site.                  dredged or fill material into waters of
                                               regarding the amount of currently                       Several commenters said this NWP does                 the United States for underground coal
                                               undisturbed adjacent lands needed to                    not comply with the Section 404(b)(1)                 mining activities, provided those
                                               facilitate the remining and reclamation                 Guidelines and that the cumulative                    activities result in minimal adverse
                                               of the previously mined area, stating                   impacts analysis is too general and fails             effects on the aquatic environment.
                                               that it creates duplicative and                         to consider past actions.                             Since these coal mining activities occur
                                               potentially conflicting layers of                          We have imposed a 1⁄2-acre limit on                underground, losses of waters of the
                                               regulation to an already highly regulated               this NWP, as well as a 300 linear foot                United States are usually small in size
                                               industry.                                               limit for the loss of stream bed. Pre-                because they are limited to discharges of
                                                  The 40 percent limit was established                 construction notification is required for             dredged or fill material in waters of the
                                               when NWP 49 was first issued in 2007,                   all activities authorized by this NWP,                United States to construct infrastructure
                                               and was based on the recognition that                   and the permittee may not begin work                  and impoundments to support those
                                               some new coal mining may have to be                     in waters of the United States until an               mining activities. Underground coal
                                               conducted to provide incentives to                      NWP verification is issued by the                     mining activities that result in the loss
                                               remine and reclaim previously mined                     district engineer. These requirements, as             of greater than 1⁄2-acre of waters of the
                                               lands. The 40 percent limit is intended                 well as the ability of district engineers             United States, or more than 300 linear
                                               to facilitate compliance with the                       to exercise discretionary authority and               feet of perennial stream bed, may be
                                               minimal adverse effects requirement for                 modify the NWP authorization by                       authorized by individual permits or, if
                                               the NWPs. We do not agree that it                       imposing activity-specific conditions,                available, regional general permits.
                                               would be appropriate to add a provision                 will help ensure that the NWP                            One commenter stated that districts
                                               allowing district engineers to waive the                authorizes only those activities with                 have incorrectly classified perennial
                                               40 percent limit. Remining and                          minimal individual and cumulative                     streams and that impacts to special
                                               reclamation activities involving                        adverse effects on the aquatic                        aquatic sites (e.g., riffle and pool
                                               discharges of dredged or fill material                  environment. Division engineers may                   complexes) have not been properly
                                               into waters of the United States that                   regionally condition this NWP to restrict             considered. Another commenter said
                                               require larger proportions of newly                     or prohibit its use in specific geographic            that Clean Water Act jurisdiction does
                                               mined areas may be authorized by                        regions, waters, or watersheds if the use             not extend to ephemeral and
                                               individual permits. The expertise                       of this NWP would authorize activities                intermittent streams. Several
                                               provided by the agencies responsible for                with more than minimal individual and                 commenters indicated stream mitigation
                                               implementing SMCRA is necessary to                      cumulative adverse effects. When                      measures are not effective and the Corps
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                                               help the Corps make its determination                   reviewing pre-construction                            has failed to provide a rational
                                               of compliance with the terms and                        notifications, district engineers will also           explanation as to how mitigation will
                                               conditions of this NWP.                                 evaluate whether the proposed activity                attenuate cumulative effects.
                                                  One commenter stated this NWP                        will cause more than minimal direct                      Classifying a stream as perennial,
                                               should look holistically at overall water               and indirect adverse effects to water                 intermittent, or ephemeral is done by
                                               and site improvements, improvement in                   quality downstream of the mine site.                  district engineers by evaluating
                                               the safety of the area by the elimination               The issuance of this NWP complies with                available information on stream flow,


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                                               including information that may be                       limitations imposed on this NWP could                 provided to their office to mitigate this
                                               submitted by a project proponent in                     potentially require applicants to seek                increase. One commenter stated that
                                               support of a pre-construction                           individual permits for all underground                sites which contain reclaimed and
                                               notification. A site visit may also be                  mining actions, which may result in a                 abandoned mines associated with deep
                                               conducted to identify perennial,                        requirement to prepare an                             mining operations with portals and/or
                                               intermittent, or ephemeral stream                       environmental impact statement. This                  bat habitat should be assessed for bat
                                               segments. Impacts to special aquatic                    commenter said that there should be a                 use.
                                               sites such as riffle and pool complexes                 transition period without acreage or                     Any workload increase due to the
                                               will be considered when reviewing a                     linear foot limits so that underground                addition of the 1⁄2-acre and 300 linear
                                               pre-construction notification, and                      coal mining activities could continue to              foot limits would be borne primarily by
                                               discretionary authority will be asserted                be authorized by this NWP until an                    the Corps districts. It does not directly
                                               if the district engineer determines that                individual permit can be obtained. One                impose additional workload on state
                                               the adverse effects on the aquatic                      commenter said that reissuing NWP 50                  agencies. The SMCRA permits required
                                               environment are more than minimal.                      with the 1⁄2-acre and 300 linear foot                 for all mining activities must go through
                                               Both intermittent and ephemeral                         limits would result in significant job                advanced coordination with the U.S.
                                               streams are subject to Clean Water Act                  losses for their company, which consists              Fish and Wildlife Service regarding
                                               jurisdiction if they are determined by                  of Native Americans who comprise 62                   endangered bat species and with the
                                               district engineers to be waters of the                  percent of their workforce. One                       State natural resources agencies
                                               United States after applying the                        commenter said that the new limits on                 regarding state listed bat species. Effects
                                               appropriate regulations and guidance.                   this NWP would also increase the Corps                to wildlife, including bats, that are not
                                               Stream rehabilitation and enhancement                   workload.                                             federally-listed as endangered or
                                               activities have been shown to improve                      This NWP provides authorization                    threatened, or state-listed bat species,
                                               the ecological functions provided by                    required under Section 404 of the Clean               will also be addressed through the
                                               those aquatic ecosystems. Stream                        Water Act, for discharges of dredged or               SMCRA permit process. For federally-
                                               compensatory mitigation projects must                   fill material into waters of the United               listed bat species, activities authorized
                                               comply with the applicable                              States. The acreage and linear foot limits            by this NWP must also comply with
                                               requirements provided in general                        of this NWP are necessary to ensure that              general condition 18, endangered
                                               condition 23, mitigation, and the                       authorized activities result in minimal               species.
                                               compensatory mitigation regulations at                  adverse effects on the aquatic                           This NWP is reissued as proposed.
                                                                                                       environment. Compliance with other                       NWP 51. Land-Based Renewable
                                               33 CFR 320.4(r) and 33 CFR part 332.
                                                                                                       laws may be required for surface coal                 Energy Generation Facilities. This NWP
                                               District engineers will review and
                                                                                                       mining activities, but those decisions                was proposed as NWP A to authorize
                                               approve mitigation plans, and will
                                                                                                       are made by the agencies responsible for              the discharges of dredged or fill material
                                               require alternative or additional
                                                                                                       administering those laws. District                    into non-tidal waters of the United
                                               compensatory mitigation if they
                                                                                                       engineers will consider the criteria in               States, excluding non-tidal wetlands
                                               determine the proposed compensatory                                                                           adjacent to tidal waters, for the
                                               mitigation will not be sufficient to                    paragraph (1) of section D, ‘‘District
                                                                                                       Engineer’s Decision’’ and other                       construction, expansion, or
                                               successfully offset the losses of aquatic                                                                     modification of land-based renewable
                                               resources caused by the permitted                       appropriate criteria, when making a
                                                                                                       minimal effects determination for a                   energy production facilities. Examples
                                               activity. Compensatory mitigation                                                                             include infrastructure to generate solar
                                                                                                       proposed NWP activity. Activities that
                                               projects must be implemented in                                                                               (concentrating solar power and
                                                                                                       result in the loss of greater than 1⁄2-acre
                                               accordance with their approved                                                                                photovoltaic), biomass, wind or
                                                                                                       of waters of the United States require
                                               mitigation plans. District engineers will                                                                     geothermal energy and their collection
                                                                                                       individual permits, unless those
                                               also require monitoring of these                                                                              systems. Attendant features may
                                                                                                       activities qualify for applicable regional
                                               compensatory mitigation projects, and                                                                         include, but are not limited to roads,
                                                                                                       general permits. If an individual permit
                                               require remediation and adaptive                                                                              parking lots, utility lines, and
                                                                                                       is required, district engineers will
                                               management if those mitigation projects                                                                       stormwater management facilities. We
                                                                                                       determine whether an environmental
                                               are not providing the intended aquatic                                                                        proposed a 1⁄2-acre limit for this NWP,
                                                                                                       impact statement is necessary to comply
                                               resource functions. If a district engineer                                                                    including the loss of no more than 300
                                                                                                       with the requirements of the National
                                               determines that a compensatory                          Environmental Policy Act. We do not                   linear feet of stream bed, unless for
                                               mitigation project is not ecologically                  agree that there should be a transition               intermittent and ephemeral stream beds
                                               successful and fails to fulfill its                     period for these activities, because the              the district engineer waives this 300
                                               objectives, district engineers may                      acreage and linear foot limits are                    linear foot limit by making a written
                                               require alternative compensatory                        necessary to comply with Section 404(e)               determination concluding that the
                                               mitigation to comply with the                           of the Clean Water Act, and past use of               discharge will result in minimal adverse
                                               mitigation requirements established                     this NWP indicates that the average loss              effects.
                                               through conditions added to the NWP                     of waters of the United States was 0.21                  Several commenters objected to the
                                               authorization.                                          acre per NWP 50 activity. While there                 issuance of this NWP, stating that the
                                                  Several commenters indicated the                     might be an increase in the number of                 Corps had failed to explain why the
                                               activities regulated by this NWP are also               individual permits, we do not believe it              direct and indirect impacts resulting
                                               heavily regulated by SMCRA, the                         will be a large workload increase. As                 from the land-based renewable energy
                                               Federal Mine Safety and Health Act                      with all NWPs, an activity that was                   projects authorized by this NWP would
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                                               (MSHA), and the state mining and water                  authorized under the 2007 NWPs has                    be minimal, including the impacts
                                               resource programs; therefore, no limits                 until March 18, 2013, to be completed                 caused by construction and operation of
                                               should be imposed on the permit. One                    under this authorization.                             these facilities. These commenters said
                                               commenter said the limits and the                          One state agency indicated                         that individual permits should be
                                               waiver process is highly subjective and                 implementation of the limits would                    required for these facilities. One of these
                                               results in uncertainty in the Regulatory                result in increased workload for their                commenters said that biomass facilities
                                               Program. One commenter stated that                      staff and requested that funding be                   will significantly add to greenhouse gas


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                                               emissions and expressed the belief that                 dredged or fill material into waters of               renewable energy facilities will require
                                               biomass facilities will lead to increased               the United States on greenhouse gas                   pre-construction notification because
                                               land-clearing for harvest, planting and                 emissions. Land clearing that may be                  they could only be authorized by this
                                               re-planting of trees. Several commenters                conducted for the harvesting, planting,               NWP. Several commenters stated that
                                               stated that wind turbines will cause                    and replanting of trees that provide fuel             NWP A should not be issued because all
                                               direct mortality on birds and bats and                  for biomass energy facilities is not                  types of land-based renewable energy
                                               adversely affect critical avian and bat                 authorized by this NWP, and if such                   facilities can be authorized by existing
                                               habitat. Two commenters stated that                     activities involve discharges of dredged              NWPs, such as NWPs 12, 14, 18, 25, and
                                               wind-generated energy facilities should                 or fill material into waters of the United            39, and it is not necessary to issue a new
                                               incorporate guidelines developed by the                 States, a separate Department of the                  NWP that requires pre-construction
                                               U.S. Fish and Wildlife Service to                       Army permit is required.                              notification for all activities. They also
                                               minimize impacts to avian and bat                          If the construction, expansion, or                 said that the issuance of NWP A would
                                               species. One commenter stated that                      modification of a land-based renewable                contradict the Corps stated goals of
                                               land-based wind and solar renewable                     energy facility involves discharges of                reducing administrative burdens on the
                                               energy facilities are not water                         dredged or fill material into waters of               regulated public, and utilizing its
                                               dependent and should always require                     the United States, and that activity may              resources to focus on those projects that
                                               individual permits to allow for a                       affect an endangered or threatened                    could be more environmentally
                                               thorough alternatives analysis for site                 species, or is located in designated                  damaging. One commenter stated that
                                               selection. Several commenters stated                    critical habitat, Endangered Species Act              the pre-construction notification
                                               that the activities authorized by this                  Section 7 consultation is required, and               requirement would cause an
                                               NWP are not similar in nature, since                    the activity cannot proceed until section             unnecessary burden on project
                                               they involve various types of renewable                 7 consultation is completed. We have                  proponents, especially the requirement
                                               energy facilities that have different                   added general condition 19, migratory                 to provide a delineation of waters of the
                                               adverse environmental effects.                          birds and bald and golden eagles, to                  United States in the project area.
                                                                                                       clarify that if an activity regulated by                 We are retaining the requirement that
                                                  This NWP authorizes discharges of
                                                                                                       the Corps will result in the ‘‘take’’ of a            all activities authorized by this NWP
                                               dredged or fill material into waters of
                                                                                                       migratory bird or a Bald or Golden                    require pre-construction notification, so
                                               the United States for the construction,
                                                                                                       Eagle, and a ‘‘take’’ permit is required              that district engineers can evaluate these
                                               expansion, or modification of land-                     from the U.S. Fish and Wildlife Service,              activities and add activity-specific
                                               based renewable energy facilities.                      it is the responsibility of the permittee             conditions, if necessary, to ensure that
                                               Unless the operation of these facilities                to apply for, and obtain, the appropriate             they result in minimal individual and
                                               involves discharges of dredged or fill                  ‘‘take’’ permits from the U.S. Fish and               cumulative adverse effects on the
                                               material into waters of the United                      Wildlife Service. The draft Land-based                aquatic environment. Other NWPs may
                                               States, the Corps does not authorize, or                Wind Turbine Guidelines developed by                  be used to authorize discharges of
                                               have any Federal control or                             the U.S. Fish and Wildlife Service are                dredged or fill material into waters of
                                               responsibility over, their operation. We                voluntary guidelines that project                     the United States for activities that may
                                               believe that the construction, expansion,               proponents may incorporate into their                 be associated with land-based
                                               or modification of these facilities has                 land-based wind energy projects. The                  renewable energy facilities. We do not
                                               minimal adverse effects on the aquatic                  Corps does not have the authority to                  intend issuance of this NWP to restrict
                                               environment, individually and                           condition this NWP to incorporate the                 currently available options for use of
                                               cumulatively. Division engineers can                    recommendations provided in those                     other NWPs to authorize any such
                                               regionally condition this NWP to restrict               guidelines. Water dependency is not a                 discharges. For example, NWP 12 may
                                               or prohibit its use in waters of the                    requirement for authorization by general              be used to authorize discharges of
                                               United States, where the discharges of                  permit, including nationwide permits.                 dredged or fill material associated with
                                               dredged or fill material are likely to                  The water dependency test in the                      the construction, maintenance, repair,
                                               result in more than minimal adverse                     404(b)(1) Guidelines guides the                       or removal of utility lines for land-based
                                               effects on the aquatic environment.                     alternatives analysis for activities that             renewable energy facilities. Likewise,
                                               While there may be emissions of                         require individual permits under                      NWP 14 may be used to authorize road
                                               greenhouse gases during construction                    Section 404 of the Clean Water Act.                   crossings in waters of the United States
                                               activities involving discharges of                         The activities authorized by this NWP              within a land-based renewable energy
                                               dredged or fill material into waters of                 (i.e., discharges of dredged or fill                  facility. Project proponents may specify
                                               the United States, those direct emissions               material into waters of the United States             which NWP they wish to use to provide
                                               will generally not exceed de minimus                    for the construction, expansion, or                   the requisite Department of the Army
                                               levels of a criteria pollutant or its                   modification of land-based renewable                  authorization under Section 404 of the
                                               precursors and are exempted by 40 CFR                   energy facilities) are similar in nature.             Clean Water Act and/or Section 10 of
                                               93.153. Emissions of greenhouse gases                   The Corps interprets the ‘‘similar in                 the Rivers and Harbors Act of 1899. If
                                               that occur from the operation of a land-                nature’’ requirement in Section 404(e) of             the proposed activity qualifies for
                                               based renewable energy generation                       the Clean Water Act broadly, to cover                 authorization under that particular
                                               facility, as well as emissions that occur               general categories of activities. The                 NWP, the district engineer will issue a
                                               when harvesting plant material for                      discharges of dredged or fill material                verification letter. This NWP fulfills the
                                               biomass energy production and                           authorized by this NWP will have                      objectives of the NWP program, since
                                               operating the energy generation facility,               similar effects on the aquatic                        many land-based renewable energy
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                                               are outside the Corps scope of analysis                 environment, by replacing waters of the               projects require discharges of dredge or
                                               under the National Environmental                        United States with dry land, or altering              fill material into waters of the United
                                               Policy Act, because the Corps does not                  their characteristics, when renewable                 States that would not qualify for NWPs
                                               have the legal authority to control such                energy facilities are constructed,                    12 or 14, or other NWPs that do not
                                               emissions. The 404(b)(1) Guidelines do                  modified, or expanded.                                require pre-construction notification.
                                               not include any requirements to assess                     Two commenters expressed concern                      One commenter suggested changing
                                               effects of proposed discharges of                       that if NWP A is issued, all land-based               the pre-construction notification


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                                               threshold to 1⁄10-acre, so that                         NWP supports the objective of                         whenever a request for a waiver of the
                                               compensatory mitigation would not be                    Executive Order 13212, by providing                   300 linear foot limit is being evaluated
                                               required for activities resulting in the                NWP authorization for some activities                 by the district engineer. One commenter
                                               loss of less than 1⁄10-acre of waters of the            that would otherwise require individual               stated that this NWP should not include
                                               United States. Another commenter said                   permits because they do not qualify for               the waiver provision because of
                                               that requiring pre-construction                         any of the existing NWPs.                             potential impacts to cultural resources
                                               notification for losses of less than 1⁄10-                 Two commenters agreed that NWP A                   and historic properties.
                                               acre removes incentives to minimize                     is needed but said that many land-based                  We do not believe it is necessary to
                                               losses of waters of the United States to                renewable energy projects would not                   coordinate all activities authorized by
                                               less than 1⁄10-acre. Two commenters                     qualify because the losses of waters of               this NWP with Federal and state
                                               stated that increasing the pre-                         the United States frequently exceed the               agencies. District engineers will
                                               construction notification threshold to                  acreage or linear foot limits. One                    carefully evaluate these pre-
                                               1⁄10-acre would be more consistent with                 commenter suggested increasing the                    construction notifications and
                                               Executive Order 13212, Actions To                       acreage limit to one acre and the linear              determine whether the proposed
                                               Expedite Energy-Related Projects.                       foot limit to 500 linear feet of stream               activities qualify for NWP authorization.
                                                  We do not agree that the pre-                        bed, and allow the district engineer to               Agency coordination is required for pre-
                                               construction notification threshold                     waive the 500 linear foot limit if he or              construction notifications for proposed
                                               should be increased to 1⁄10-acre to match               she determines that the activity will                 activities resulting in the loss of
                                                                                                       result in minimal adverse                             intermittent or ephemeral stream bed in
                                               the pre-construction notification
                                                                                                       environmental effects. One commenter                  excess of 300 linear feet. Activities
                                               thresholds for NWP 12 or 14, since
                                                                                                       stated that NWP A should not allow                    authorized by this NWP must also
                                               utility lines or road crossings may be
                                                                                                       waivers for stream bed losses in excess               comply with general condition 20,
                                               only partial components of a land-based
                                                                                                       of 300 linear feet.                                   historic properties and district engineers
                                               renewable energy generation facility. It                   We believe that there will be a                    will conduct section 106 consultation if
                                               should be noted that NWP 14 requires                    sufficient number of land-based                       a proposed activity may have the
                                               pre-construction notification for any                   renewable energy generation facilities                potential to cause effects to any historic
                                               discharge into a special aquatic site,                  authorized by this NWP to warrant its                 properties listed, or eligible for listing,
                                               including wetlands, which means that                    issuance. As with all general permits,                on the National Register of Historic
                                               many NWP 14 activities that result in a                 this NWP will also provide an incentive               Places.
                                               loss of less than 1⁄10-acre require pre-                for project proponents to reduce losses                  Several commenters requested
                                               construction notification. Nationwide                   of waters of the United States to qualify             clarification on whether land-based
                                               permit 12 should be used when the only                  for NWP authorization, instead of                     renewable energy facilities would be
                                               activities that require Department of the               having to apply for individual permit                 considered as single and complete
                                               Army authorization are discharges of                    authorization, if there are no regional               linear projects or single and complete
                                               dredged or fill material to construct,                  general permits available to authorize                non-linear projects. Several commenters
                                               maintain, repair, or remove utility lines.              these activities. The 1⁄2-acre and 300                asked if the linear features of these
                                               Therefore, in Note 1 we state that NWP                  linear foot limits are necessary to ensure            facilities, such as roads, utilities, and
                                               12 is to be used to authorize those                     that this NWP authorizes only those                   transmission lines, could be categorized
                                               utility line activities, as long as those               activities that have minimal individual               as linear projects, while the
                                               activities comply with the terms and                    and cumulative adverse effects on the                 construction of other components of the
                                               conditions of NWP 12, including                         aquatic environment, and are consistent               project, such as parking lots and
                                               applicable regional conditions and any                  with the limits in many other NWPs.                   buildings, would be considered as non-
                                               case-specific conditions imposed by the                 Division engineers can regionally                     linear projects. A few commenters said
                                               district engineer. This NWP authorizes                  condition this NWP to reduce the                      terms and conditions should be added
                                               building pads for the renewable energy                  acreage limit or linear foot limits, or               to the NWP to specify that the definition
                                               generation devices and attendant                        revoke this NWP in specific waters or                 of single and complete linear project
                                               features associated with those devices,                 geographic areas where the adverse                    would always be used for linear
                                               such as parking lots and stormwater                     effects on the aquatic environment may                components of the overall facility. One
                                               management facilities. If more than one                 be more than minimal. In response to a                commenter stated that the activities
                                               NWP is used to authorize a land-based                   pre-construction notification, the                    authorized by this NWP should be
                                               renewable energy generation facility, the               district engineer may add activity-                   considered one single and complete
                                               activity must comply with general                       specific conditions to the NWP                        project because all renewable energy
                                               condition 28, use of multiple                           authorization to impose requirements to               devices and their attendant features,
                                               nationwide permits, which states that                   satisfy the minimal adverse                           including both linear and non-linear
                                               the loss of waters of the United States                 environmental effect requirement. The                 components, are required for the facility
                                               cannot exceed the acreage limit of the                  300 linear foot limit for the loss of                 to have independent utility.
                                               NWP with the highest specified acreage                  intermittent and ephemeral stream bed                    We have added Note 1 to this NWP
                                               limit. Compensatory mitigation is at the                can only be waived when the district                  to clarify that the NWP authorizes
                                               discretion of the district engineer, and                engineer makes a written determination                discharges of dredged or fill material
                                               will be required when necessary to                      that the loss of that stream bed will                 into waters of the United States for the
                                               ensure that the authorized activity                     result in minimal adverse                             construction, expansion, or
                                               results in minimal individual and                       environmental effects, after evaluating               modification of a land-based renewable
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                                               cumulative adverse effects on the                       the site-specific characteristics of the              energy generation facility, including
                                               aquatic environment. Paragraph (a) of                   project.                                              attendant features within that facility,
                                               general condition 23, mitigation,                          Several commenters said that all pre-              and that utility lines that are used to
                                               requires permittees to avoid both                       construction notifications should be                  transfer energy from the renewable
                                               temporary and permanent adverse                         coordinated with other Federal and state              energy generation facility to a
                                               effects to waters of the United States on               agencies. One commenter stated that                   distribution system, regional grid, or
                                               the project site. The issuance of this                  agency coordination should be required                other facility are generally considered to


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                                               10238                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               be separate single and complete linear                  environment. Project proponents must                     Several commenters supported the
                                               projects. Those utility lines may be                    obtain all applicable Federal, state, or              issuance of this NWP. Some of these
                                               authorized by NWP 12 or other                           local authorizations, such as state                   commenters provided suggestions to
                                               Department of the Army authorization.                   permits to authorize activities on state-             improve the NWP. Two commenters
                                               A similar approach should be used for                   owned waters or submerged lands.                      said the acreage limit should be
                                               roads or other types of utility lines (e.g.,               One commenter said that this NWP                   increased from 1⁄2-acre to one acre and
                                               sewage or water lines) constructed to                   could be used to authorize activities                 the linear foot limit be increased from
                                               provide access to, or service, the land-                associated with wind energy generating                300 linear feet to 500 linear feet. One
                                               based renewable energy generation                       structures, solar towers, or overhead                 commenter stated that the NWP limits
                                               facility. We are using the term                         transmission lines, which have the                    impacts to 1⁄2-acre without taking into
                                               ‘‘generally’’ in Note 1 because crossings               potential to interfere with Department of             consideration the aggregate capacity of
                                               of waters of the United States have to be               Defense’s long range surveillance,                    the facility, only the number of
                                               at separate and distant locations to be a               homeland defense, testing, and training               generation units. One commenter said
                                               single and complete project. Crossings                  missions. This commenter requested                    the pre-construction notification
                                               that are close together would not be                    that copies of pre-construction                       threshold should be increased to 1⁄10-
                                               considered separate single and complete                 notifications and NWP verification                    acre to be consistent with the pre-
                                               projects. Since the configuration of                    letters for these activities be provided to           construction notification threshold of
                                               land-based renewable energy generation                  the Department of Defense Siting                      some of the other NWPs that authorize
                                               facilities can vary substantially, district             Clearinghouse, so that the Department                 similar activities, such as NWP 12. This
                                               engineers will use their discretion to                  of Defense could have an opportunity to               commenter asked why activities
                                               determine which activities are single                   coordinate with the project proponent to              associated with water-based renewable
                                               and complete linear projects and which                  ensure that long range surveillance,                  energy projects should be subject to
                                               activities are single and complete non-                 homeland defense, testing, and training               closer scrutiny than other energy-related
                                               linear projects, after evaluating the                   missions are not adversely affected by                activities.
                                               specific circumstances of a particular                  these activities.                                        We are issuing this NWP with the 1⁄2-
                                               project. For example, the devices used                     We have added Note 2 to this NWP                   acre and 300 linear foot limits, and
                                               to collect wind or solar energy may be                  to require district engineers to send pre-            restricting its use to pilot projects, to
                                               arranged in a grid or in a linear                       construction notifications and NWP                    ensure that this NWP authorizes only
                                               configuration.                                          verification letters to the Department of
                                                  One commenter asked how the permit                                                                         those activities that have minimal
                                                                                                       Defense Siting Clearinghouse if this                  adverse effects on the aquatic
                                               area would be determined for land-
                                                                                                       NWP is proposed to be used to                         environment. Division engineers can
                                               based renewable energy facilities.
                                                                                                       authorize the construction of wind                    impose regional conditions on this NWP
                                               Specifically, the commenter asked
                                                                                                       energy generating structures, solar                   to decrease these limits, if there is
                                               whether the permit area would be the
                                                                                                       towers, or overhead transmission lines.               potential for these activities to result in
                                               entire area bound by the perimeter of
                                                                                                       The Department of Defense Siting                      more than minimal adverse effects on
                                               the facility, or just those areas within
                                                                                                       Clearinghouse is responsible for                      the aquatic environment in a particular
                                               the facility where there are discharges of
                                                                                                       coordinating with the project proponent               waterbody or geographic area.
                                               fill material into waters of the United
                                                                                                       and resolving any potential effects on                Individual permits, with a public notice
                                               States.
                                                  Identifying the permit area for the                  Department of Defense long range                      and comment process, should be
                                               purposes of compliance with general                     surveillance, homeland defense, testing,              required for larger-scale water-based
                                               condition 20, historic properties, is                   and training missions.                                renewable energy generation facilities
                                               accomplished by applying the criteria in                   Proposed NWP A is issued as NWP                    that are not pilot projects and involve
                                               Appendix C to 33 CFR part 325,                          51, with the changes discussed above.                 activities that require Department of the
                                               specifically paragraph 1(g), as well as                    NWP 52. Water-Based Renewable                      Army authorization. Use of technologies
                                               the interim guidance issued on April 25,                Energy Generation Pilot Projects. This                other than wind or hydrokinetic devices
                                               2005 (paragraph 6(d)). The permit area                  NWP was proposed as NWP B to                          for water-based renewable energy
                                               will be determined by district engineers                authorize structures or work in                       generation facilities may be authorized
                                               after considering the project-specific                  navigable waters of the United States                 by other forms of Department of the
                                               circumstances.                                          and discharges of dredged or fill                     Army permits, if such permits are
                                                  Several commenters stated that this                  material into waters of the United                    required for the construction,
                                               NWP should not authorize activities in                  States, for the construction, expansion,              expansion, modification, or removal of
                                               certain geographic areas, such as the                   or modification of water-based wind or                those devices. We are requiring pre-
                                               Great Lakes. One commenter said that                    hydrokinetic renewable energy                         construction notification for all
                                               approval may be required for facilities                 generation pilot projects and their                   activities authorized by this NWP, so
                                               that would impact state-owned waters                    attendant features. Attendant features                that district engineers can evaluate the
                                               or submerged lands.                                     may include, but are not limited to land-             proposed work and make a project-
                                                  Division engineers have the authority                based distribution facilities, roads,                 specific determination that the adverse
                                               to suspend or revoke this NWP in                        parking lots, utility lines, and                      effects on navigation, the aquatic
                                               specific waters or geographic areas.                    stormwater management facilities. We                  environment, and other public interest
                                               Division engineers may also add                         proposed a 1⁄2-acre limit for this NWP,               review factors would be minimal,
                                               regional conditions to restrict or                      including the loss of no more than 300                individually and cumulatively. It
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                                               prohibit its use in certain waters or                   linear feet of stream bed, unless for                 should be noted that NWP 12 only
                                               regions. In response to a pre-                          intermittent and ephemeral stream beds                authorizes discharges of dredged or fill
                                               construction notification, district                     the district engineer waives this 300                 material, or structures or work in
                                               engineers may add activity-specific                     linear foot limit by making a written                 navigable waters of the United States,
                                               conditions to the NWP authorization to                  determination concluding that the                     for the construction, maintenance, or
                                               ensure that the activity results in                     discharge will result in minimal adverse              repair of utility lines, and that all NWP
                                               minimal adverse effects on the aquatic                  effects.                                              12 activities in section 10 waters require


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                                               pre-construction notification. Therefore,               engineers with the opportunity to                     energy generation facilities. A water-
                                               there are few differences in pre-                       review each proposed activity and                     based renewable energy generation
                                               construction notification thresholds for                determine whether the adverse effects                 facility that is not a pilot project and
                                               this NWP and other NWPs that may                        on the aquatic environment will be                    does not qualify for an applicable
                                               authorize similar activities. However, as               minimal. District engineers may add                   regional general permit is more
                                               with NWP 51, it is not our intent to                    activity-specific conditions to the NWP               appropriately evaluated through the
                                               limit any currently available options for               authorization which require actions to                standard permit process, including a
                                               use of other applicable NWPs to cover                   mitigate adverse environmental effects.               full public interest review.
                                               discharges of dredge or fill material                   District engineers may also exercise                     One commenter stated that even pilot
                                               associated with activities involved in                  discretionary authority to require an                 projects may result in more than
                                               the construction of water-based                         individual permit if permit conditions                minimal adverse effects on the aquatic
                                               renewable energy generation pilot                       will not be sufficient to comply with the             environment because of indirect effects
                                               projects. Rather, this NWP provides an                  minimal adverse environmental effects                 caused by blade strikes on birds and
                                               additional option for authorization of                  requirement for general permits.                      potential obstructions to navigation
                                               such discharges that are not currently                  Division engineers may impose regional                when these pilot projects are sited in
                                               covered by any other NWP.                               conditions to restrict or prohibit the use            navigable rivers. One commenter said
                                                  Several commenters also stated that                  of this NWP in certain waters or specific             the 10 generation unit limit may not be
                                               the limit of 10 generation units should                 geographic areas, including the Great                 effective in ensuring that single and
                                               either be eliminated or further defined.                Lakes.                                                complete projects do not cause more
                                               Several commenters said the 10                             Several commenters requested a                     than minimal adverse environmental
                                               generation unit limit should be removed                 definition of the term ‘‘pilot project.’’             effects on a cumulative basis or comply
                                               to allow projects that employ different                 Some of these commenters said that this               with monitoring requirements.
                                               technologies to be authorized by this                   term could be interpreted broadly, in                    District engineers will review pre-
                                               NWP. Several commenters said that the                   part because much of the technology                   construction notifications and
                                               total number of generation units should                 used for water-based renewable energy                 determine whether the proposed
                                               be defined as the total number of units                 generation facilities is in the early stages          activity complies with all terms and
                                               per each single and complete project.                   of development. In contrast, another                  conditions of the NWP and may add
                                                  We believe the 10-unit limit is                      commenter stated that not defining the                activity-specific conditions, such as
                                               necessary to ensure that these pilot                    term ‘‘pilot project’’ would restrict the             authorizing less than 10 units, to
                                               projects are small in scope, to ensure                  applicability of this NWP. One                        minimize adverse effects to navigation,
                                               they would not have significant adverse                 commenter suggested that this NWP not                 the aquatic environment, and other
                                               environmental effects. The 10-unit limit,               be limited to pilot projects. One                     public interest review factors such as
                                               as well as the 1⁄2-acre and 300 linear foot             commenter recommended limiting pilot                  impacts to fish and wildlife values.
                                               limits, apply to single and complete                    projects to those that will be used as                Indirect effects caused by the operation
                                               projects. The information collected                     demonstration projects or test projects               of these pilot projects, such as wind
                                               during these pilot projects will be useful              to determine the practicability of water-             turbine blade strikes on birds, should be
                                               in evaluating the potential productivity,               based renewable energy generation at a                addressed through compliance with the
                                               feasibility, and environmental effects of               particular site. One commenter said that              appropriate Federal laws, such as the
                                               larger scale water-based renewable                      this NWP should not be limited to small               Endangered Species Act, Migratory Bird
                                               energy generation facilities, which will                offshore wind energy pilot projects, and              Treaty Act, or Bald and Golden Eagle
                                               require other types of authorization if                 that this NWP should authorize offshore               Protection Act. Compliance with the
                                               they require DA permits.                                wind energy projects of any duration to               Endangered Species Act is addressed
                                                  Numerous commenters objected to the                  encourage the development of                          through general condition 18. As stated
                                               issuance of this NWP. Most of these                     renewable energy technologies.                        in general condition 19, project
                                               commenters said that these activities                      We have added a provision to this                  proponents are responsible for obtaining
                                               will result in more than minimal                        NWP that defines the term ‘‘pilot                     any take permits that may be required
                                               individual and cumulative adverse                       project.’’ The definition is similar to               under the Migratory Bird Treaty Act or
                                               effects on the aquatic environment.                     how the Federal Energy Regulatory                     the Bald and Golden Eagle Protection
                                               Several commenters said that there is                   Commission describes hydrokinetic                     Act. The project proponent should
                                               not sufficient understanding of the                     pilot projects in their April 2008 white              contact the local office of the U.S. Fish
                                               environmental effects of these activities               paper on licensing hydrokinetic pilot                 and Wildlife Service to determine
                                               to warrant issuance of an NWP. Some                     projects. The definition in the NWP                   whether a take permit is required for
                                               commenters stated that these activities                 focuses on the experimental nature of                 that project. Impacts to fish or other
                                               should be authorized by individual                      pilot projects, and their use in collecting           aquatic organisms caused by
                                               permits, with a full public notice and                  data on the performance of the device in              hydrokinetic energy units should be
                                               comment process and National                            generating energy for other uses and the              considered by district engineers when
                                               Environmental Policy Act                                effects of the devices on the                         reviewing pre-construction notifications
                                               documentation. A few commenters said                    environment, including the aquatic                    for activities authorized by this NWP.
                                               this NWP should not be used to                          environment. Due to the recent                        District engineers may also suspend or
                                               authorize activities in the Great Lakes.                development of this technology, we                    revoke NWP authorizations if they
                                                  The terms and conditions of this                     believe it is necessary to limit these                determine those activities are causing
                                               NWP, including the 1⁄2-acre limit, the                  water-based renewable energy                          more than minimal adverse
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                                               300 linear foot limit, and the 10-unit                  generation facilities to pilot projects, to           environmental effects to the aquatic
                                               limit will ensure that this NWP                         provide more information on potential                 environment. Division engineers may
                                               authorizes only those activities with                   adverse effects to the aquatic                        impose regional conditions on this NWP
                                               minimal adverse effects on the aquatic                  environment. In a future reissuance of                to reduce the number of units
                                               environment. All activities authorized                  the NWPs, we may consider expanding                   authorized by this NWP, or restrict or
                                               by this NWP require pre-construction                    the scope of this NWP to authorize other              prohibit its use in specific waters or
                                               notification, which provides district                   small-scale water-based renewable                     other geographic areas.


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                                               10240                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                  Several commenters requested                         into waters of the United States for                  losses of greater than 300 linear feet of
                                               clarification of applicability of the 300               water-based renewable energy                          intermittent and ephemeral stream bed.
                                               linear foot stream limit to the ocean                   generation pilot projects. Two                           Two commenters recommended
                                               floor or the Great Lakes because those                  commenters suggested adding coral                     adding a provision to this NWP that
                                               waters are not characterized as streams.                reefs to the list of prohibited areas.                requires the removal of structures
                                               A few commenters suggested that the                     Another commenter suggested adding                    associated with any activity authorized
                                               300 linear foot limit does not apply to                 National wildlife refuges, state parks,               under this NWP, once the pilot project
                                               water-based renewable energy                            state wildlife management areas,                      has been completed. One commenter
                                               generation pilot projects in the ocean or               designated significant coastal areas,                 suggested adding more examples of
                                               large rivers, since activities in those                 critical habitats for Federally-listed                attendant features that may be
                                               waters does not result in a loss of stream              endangered and threatened species,                    authorized by this NWP, such as control
                                               bed.                                                    important bird areas, or any sensitive                rooms, trailers, vaults and sheds since
                                                  We agree that the 300 linear foot limit              environmental area. One commenter                     these are common features of land-based
                                               does not apply to the construction,                     recommended adding eelgrass beds,                     distribution facilities.
                                               expansion, modification, or removal of                  seagrass beds, kelp beds, macro-algae                    We have added a paragraph to this
                                               water-based wind or hydrokinetic                        beds, vegetated shallows, and shellfish               NWP that requires the permittee to
                                               renewable energy devices in the ocean,                  beds to the list of excluded areas.                   remove the generation units,
                                               Great Lakes, or large navigable rivers,                    The proposed NWP B stated that it                  transmission lines, and other structures
                                               since those activities do not result in                 did not authorize activities in coral                 or fills associated with the pilot project
                                               loss of stream bed. The 300 linear foot                 reefs. This NWP is also subject to                    once the pilot project is completed,
                                               limit also does not apply to the                        general condition 22, designated critical             unless they are authorized by a separate
                                               installation or removal of transmission                 resource waters, which prohibits using                Department of the Army authorization,
                                               lines on the ocean floor, the bottom of                 this NWP to authorize discharges of                   such as another NWP, an individual
                                               the Great Lakes, or the substrate of large              dredged or fill material into critical                permit, or a regional general permit.
                                               navigable rivers. Transmission lines                                                                          Pilot units may be integrated into a
                                                                                                       resource waters and their adjacent
                                               placed on the bottom of navigable                                                                             permanent water-based renewable
                                                                                                       wetlands. Critical resource waters
                                               waters are generally considered to be                                                                         energy generation facility after the
                                                                                                       include marine sanctuaries and marine
                                               structures, not fill. District engineers                                                                      experimental phase has been completed,
                                                                                                       monuments managed by the National
                                               will evaluate the techniques used to                                                                          and the permanent facility has been
                                                                                                       Oceanic and Atmospheric
                                               place transmission lines on the bottom                                                                        authorized by any required Department
                                                                                                       Administration, and National Estuarine
                                               of navigable waters and determine                                                                             of the Army permits. We have also
                                                                                                       Research Reserves. District engineers
                                               whether there is a discharge of dredged                                                                       added ‘‘removal’’ to the first sentence of
                                                                                                       may designate additional critical
                                               or fill material, and whether that                                                                            this NWP, to clarify that the NWP also
                                                                                                       resource waters, after notice and an
                                               discharge of dredged or fill results in a                                                                     authorizes the removal of structures and
                                                                                                       opportunity for public comment.                       fills associated with water-based
                                               loss of waters of the United States
                                                                                                       Division engineers may also impose                    renewable energy generation pilot
                                               subject to the 300 linear foot limit. The
                                                                                                       regional conditions to restrict or                    projects, if, for example, the removal of
                                               installation of transmission lines in
                                                                                                       prohibit the use of this NWP in specific              structures or fills from navigable waters
                                               these navigable waters in trenches that
                                                                                                       categories of waters or in certain                    of the United States would require
                                               are backfilled constitutes a temporary
                                                                                                       geographic areas. In response to a pre-               authorization under Section 10 of the
                                               impact and is not applied to the 300
                                                                                                       construction notification, district                   Rivers and Harbors Act of 1899.
                                               linear foot limit for the loss of stream
                                                                                                       engineers may exercise discretionary                  Furthermore, we added a clarification of
                                               bed. The 300 linear foot limit for the
                                               loss of stream bed applies primarily to                 authority and require an individual                   ‘‘completion of the pilot project,’’ which
                                               the construction of land-based attendant                permit if the proposed activity will                  will be identified as the date of
                                               features, such as distribution facilities,              result in more than minimal adverse                   expiration of the FERC (Federal Energy
                                               control facilities, roads, parking lots,                effects on the aquatic environment.                   Regulatory Commission) license, or the
                                               and stormwater management facilities.                      One commenter said that district                   expiration date of the NWP
                                               We have added a provision to this NWP                   engineers should not be authorized to                 authorization if no FERC license is
                                               to clarify that the placement of a                      waive the 300 linear foot limit for the               issued. If the project proponent wants to
                                               transmission line on the bed of a                       loss of intermittent and ephemeral                    continue operating the pilot project after
                                               navigable water of the United States                    stream bed. One commenter suggested                   the expiration of the FERC license, he or
                                               from the renewable energy generation                    that all pre-construction notifications               she should apply for another form of DA
                                               unit(s) to a land-based collection facility             requesting a waiver of the 300 linear                 permit, such as an individual permit. If
                                               is considered a structure regulated                     foot limit should be coordinated with                 the pilot project was only authorized by
                                               under Section 10 of the Rivers and                      the Federal and state resource agencies.              NWP 52, it may be verified under a
                                               Harbors Act of 1899, and not a discharge                   For those losses of more than 300                  reissued NWP 52, if NWP 52 is reissued
                                               of fill material under Section 404 of the               linear feet of intermittent and ephemeral             in 2017. Reauthorization under a
                                               Clean Water Act. The placement of the                   stream bed that result in minimal                     reissued NWP 52 may require
                                               transmission line on the bed of the                     adverse effects on the aquatic                        submission of a new pre-construction
                                               navigable water is not considered a loss                environment, it is appropriate for                    notification, to ensure that the pilot
                                               of waters of the United States that                     district engineers to have the authority              project still meets the terms and
                                               applies towards the 1⁄2-acre limit or 300               to waive the 300 linear foot limit. This              conditions of the reissued NWP 52. We
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                                               linear foot limit of the NWP.                           approach is consistent with the                       have added ‘‘control facilities’’ to the
                                                  Several commenters requested the                     statutory requirement that activities                 list of examples of attendant features.
                                               addition of more categories of sensitive                authorized by general permits,                           One commenter recommended adding
                                               habitat where this NWP could not be                     including NWPs, result in minimal                     a note to the NWP to require a mutual
                                               used to authorize structures or work in                 individual and cumulative adverse                     agreement between the Corps, the
                                               navigable waters of the United States or                environmental effects. Agency                         United States Coast Guard, and a
                                               discharges of dredged or fill material                  coordination is required for proposed                 prospective permittee to ensure


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                                               navigational safety. One commenter                        We have added Note 4 to this NWP                    flows, adequately address the concerns
                                               stated that the NWP should include a                    to require district engineers to send pre-            about temporary crossings and
                                               provision requiring compliance with                     construction notifications and NWP                    structures.
                                               state permit requirements to ensure a                   verification letters to the Department of                One commenter said the phrase ‘‘as
                                               consistent and thorough environmental                   Defense Siting Clearinghouse if this                  appropriate’’ should be deleted from the
                                               review. One commenter said that this                    NWP is proposed to be used to                         Note at the beginning of Section C,
                                               NWP should require project proponents                   authorize the construction of wind                    Nationwide Permit General Conditions.
                                               to comply with the Department of the                    energy generating structures, solar                      We have changed this phrase to ‘‘as
                                               Interior’s suggested practices for avian                towers, or overhead transmission lines.               applicable’’ to clarify that a permittee is
                                               protection to protect birds from                        The Department of Defense Siting                      responsible for complying with general
                                               electrocution.                                          Clearinghouse is responsible for                      conditions that are pertinent to a
                                                  We do not agree that it is necessary                 coordinating with the project proponent               particular NWP activity.
                                               to require the execution of agreements                  and resolving any potential effects on                Comments on Specific General
                                               between the Corps, United States Coast                  Department of Defense long range                      Conditions
                                               Guard, and the prospective permittee to                 surveillance, homeland defense, testing,
                                                                                                       and training missions.                                   GC 1. Navigation. We did not propose
                                               ensure navigation safety. District                                                                            any changes to this general condition
                                               engineers will review pre-construction                    Proposed NWP B is issued as NWP
                                                                                                       52, with the changes discussed above.                 and no comments were received. The
                                               notifications and exercise discretionary                                                                      general condition is adopted as
                                               authority if the proposed activity will                 General Conditions                                    proposed.
                                               have more than minimal adverse effects                                                                           GC 2. Aquatic Life Movements. We
                                                                                                          One commenter suggested reordering
                                               on navigation. The permittee must                       the general conditions to better                      proposed to modify this general
                                               comply with applicable United States                    aggregate concepts based on importance                condition to provide added protection
                                               Coast Guard requirements to mark or                     to permittees and the resources                       to the aquatic environment by
                                               light structures in navigable waters. It is             potentially affected. One commenter                   promoting the use of bottomless
                                               the permittee’s responsibility to obtain                recommended placing general                           culverts, when it is practicable to use
                                               any other Federal, state, or local                      conditions 14 and 20 together because                 those types of culverts to maintain
                                               authorizations that may be required for                 they both address cultural resources.                 movements of aquatic organisms.
                                               the water-based renewable energy                        One commenter said that proposed                         Two commenters supported the
                                               generation pilot project. The permittee                 general condition 30, pre-construction                proposed changes to this general
                                               may voluntarily incorporate into his or                 notification, should become general                   condition. One commenter said that all
                                               her project the Department of the                       condition 1 because of its importance                 crossings should be designed by using a
                                               Interior’s recommended practices for                    for potential users of the NWPs, in terms             stream simulation technique. Another
                                               protecting birds from electrocution. If                 of the pre-construction notification                  commenter stated that requirements for
                                               the proposed NWP activity may affect                    requirements.                                         bottomless culverts should only apply
                                               endangered or threatened bird species,                     With one exception, we have retained               to new activities. Many commenters
                                               Endangered Species Act Section 7                        the order of the general conditions                   said that culverts that are installed with
                                               consultation will be conducted, which                   because we believe they are in a logical              their bottoms below the grade of the
                                               may also address potential effects to                   order. We have moved proposed general                 stream bed can be as effective as
                                               those species caused by electrocution.                  condition 14, discovery of previously                 bottomless culverts in improving
                                               In accordance with general condition                    unknown remains and artifacts, to                     conditions for aquatic life movement
                                               19, migratory birds and bald and golden                 become general condition 21 so that it                while still being cost effective and
                                               eagles, it is the permittee’s                           follows general condition 20, historic                providing the intended function of
                                               responsibility to obtain any ‘‘take’’                   properties. We have retained the pre-                 allowing movement of aquatic
                                               permits that may be required under the                  construction notification general                     organisms.
                                               U.S. Fish and Wildlife Service’s                        condition in its place as the last general               Many commenters objected to the
                                               regulations governing compliance with                   condition (as general condition 31),                  proposed changes to this general
                                               the Migratory Bird Treaty Act and the                   because the text of the NWPs state                    condition, and most of these
                                               Bald and Golden Eagle Protection Act.                   which activities require pre-                         commenters requested that the reference
                                                  One commenter said that this NWP                     construction notification.                            to the use of bottomless culverts be
                                               could be used to authorize activities                      Two commenters suggested new                       removed, stating that in many cases that
                                               associated with wind energy generating                  general conditions to minimize                        bottomless culverts are not practicable
                                               structures, solar towers, or overhead                   construction impacts. One suggestion                  or cannot be used in many locations. A
                                               transmission lines, which have the                      was to require flagging construction                  large number of commenters expressed
                                               potential to interfere with Department of               limits to protect nearby aquatic areas                concern that requiring the use of
                                               Defense’s long range surveillance,                      and the other recommended a general                   bottomless culverts would significantly
                                               homeland defense, testing, and training                 condition to address temporary                        increase costs and would not be
                                               missions. This commenter requested                      crossings or structures.                              feasible. Several commenters disagreed
                                               that copies of pre-construction                            Requirements to flag construction                  that the use of bottomless or buried
                                               notifications and NWP verification                      limits are more appropriately addressed               culverts reduces overall impacts to
                                               letters for these activities be provided to             through activity-specific conditions                  streams, and some commenters said that
                                               the Department of Defense Siting                        added to an NWP authorization, when                   use of bottomless culverts can cause
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                                               Clearinghouse, so that the Department                   the district engineer determines such                 adverse effects to streams by increasing
                                               of Defense could have an opportunity to                 flagging is necessary to ensure the                   erosion and head cuts. One commenter
                                               coordinate with the project proponent to                authorized activity results in minimal                recommended promoting the use of
                                               ensure that long range surveillance,                    adverse effects on the aquatic                        alternative measures or techniques to
                                               homeland defense, testing, and training                 environment. General condition 13,                    maintain aquatic life movements. Some
                                               missions are not adversely affected by                  removal of temporary fills, and general               commenters said that the proposed
                                               these activities.                                       condition 9, management of water                      changes to this general condition would


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                                               10242                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               result in all affected activities requiring             objective of the general condition,                   requirement should be limited to
                                               pre-construction notification.                          which is to sustain the movements of                  streams and not required for ditches or
                                                  After evaluating the large number of                 aquatic species indigenous to the                     other waters. Another commenter
                                               comments received in response to the                    waterbody, both during and after                      expressed concern that installing the
                                               proposed changes to this general                        completion of the activity.                           bottom of the culvert below grade will
                                               condition, we have generally reverted                      Several commenters stated that                     tend to dewater wetlands.
                                               back to the text that was in the 2007                   requiring bottomless culverts or bottoms                 The general condition has been
                                               general condition, with a few minor                     of culverts to be below the grade of the              reworded to provide flexibility to
                                               changes. We have modified the last                      stream bed restricts design flexibility               determine appropriate culvert design
                                               sentence of the 2007 general condition                  that reflects site specific conditions.               based on site-specific characteristics.
                                               to make it clear that the general                       One commenter said it is not practicable              Crossings of perennial, intermittent, and
                                               condition applies to both temporary and                 to install the bottoms of culverts below              ephemeral streams must be
                                               permanent crossings, and that those                     grade in all circumstances. One                       appropriately designed and constructed
                                               crossings should be designed and                        commenter said that the appropriate                   to sustain the movement of indigenous
                                               constructed to maintain low flows to                    structure to allow aquatic life                       aquatic species.
                                               sustain the movement of indigenous                      movements to continue should be                          Many commenters requested a
                                               aquatic species. We have not adopted                    determined by considering the land                    definition of the term ‘‘practicable’’ as
                                               the provision that would have required                  cover within the watershed, the                       used in the context of the proposed
                                               bottomless culverts to be used where                    variability of stream flow, and the                   general condition. One commenter said
                                               practicable. In addition, we have not                   presence or absence of aquatic life. One              that regional variability should be
                                               incorporated the sentence that explains                 commenter indicated that it is not                    considered when determining if it is
                                               some of the circumstances where                         possible to bury pre-cast culverts                    practicable to use a bottomless culvert.
                                               bottomless culverts may not be                          because the bed material would be                     Several commenters asked for more
                                               practicable. In response to a pre-                      difficult to place. This commenter also               examples of when it would be
                                               construction notification, the district                 said that below grade structures collect              impractical to use a bottomless culvert.
                                               engineer may evaluate the proposed                      more debris and increase erosion on the               One commenter requested clarification
                                               crossing to determine whether it                        downstream side of the culvert. This                  as to who would determine if use of a
                                               complies with this general condition.                   commenter expressed concern that                      bottomless culvert is practicable. Many
                                               The district engineer may add                           culvert bottoms installed below grade                 commenters said cost should be a
                                               conditions to the NWP authorization to                  would cause water to pool and provide                 primary factor used to determine if it is
                                               require measures to sustain aquatic life                habitat for pests such as mosquitoes.                 practicable to use a bottomless culvert.
                                               movements, including bottomless                         One commenter said that below grade                   One commenter stated that there would
                                               culverts, if appropriate.                               culverts direct high velocity flows and               be additional paperwork requirements
                                                  Many commenters said that                            create scour holes at the outlet and                  necessary to evaluate the practicability
                                               bottomless culverts require complex                     destabilize the banks. Another                        of using bottomless culverts.
                                               designs that require pile supported                     commenter stated that sinking a culvert                  The proposed provision requiring the
                                               footings and many local and county                      below grade drains land used for row                  use of bottomless culverts where
                                               governments do not have the resources                   crops and accumulates silt that blocks                practicable has not been adopted into
                                               available to design, construct, and                     aquatic life movements.                               the final general condition. The term
                                               maintain bottomless culverts in a                          We have also removed the provision                 ‘‘practicable’’ is defined in the 404(b)(1)
                                               manner that ensures roadway safety.                     requiring the bottoms of culverts to be               Guidelines at 40 CFR 230.3(q) as
                                               Many commenters stated that                             installed below the grade of the stream               ‘‘available and capable of being done
                                               bottomless culverts need more long-                     bed unless the stream bed consists of                 after taking into consideration cost,
                                               term maintenance and will increase                      bedrock or boulders. The modified                     existing technology, and logistics in
                                               costs and delays. One commenter noted                   general condition merely states that                  light of overall project purposes.’’
                                               that construction techniques required to                permanent and temporary crossings of                  However, it is no longer used in this
                                               install bottomless culverts may result in               waterbodies must be suitably culverted,               general condition.
                                               unsuitable conditions for aquatic life                  bridged, or otherwise designed or                        One commenter said the general
                                               movement. Several commenters                            constructed, to provide flexibility for               condition should include criteria to be
                                               expressed concern that footings may                     using a crossing that is appropriate for              used to determine whether there is a
                                               deteriorate and undermine the integrity                 the site conditions, while sustaining the             substantial disruption to aquatic life
                                               of the structure and increase the                       movements of aquatic species                          movement. Two commenters asked
                                               possibility of collapse during high flow                indigenous to the waterbody.                          what threshold would be used to
                                               conditions. Several commenters said                        Many commenters said that the use of               identify a substantial disruption.
                                               bottomless culverts cannot be installed                 bottomless culverts should be limited to              Another commenter stated that the
                                               in areas with highly erodible or weak                   perennial streams. A number of                        general condition should list the species
                                               soils. One commenter asserted that                      commenters stated that many ephemeral                 that would be covered. One commenter
                                               bottomless culverts generally cannot                    and intermittent streams are not capable              said this general condition would not
                                               support load conditions created by rail                 of supporting aquatic life or do not have             sustain aquatic life movements during
                                               traffic.                                                sufficient aquatic life movement to                   future high flows that are expected as a
                                                  Because of the various factors that                  justify the expense and technical design              result of global climate change.
                                               determine appropriate culvert designs                   requirements for bottomless culverts.                    Determining compliance with this
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                                               for a particular waterbody, we are not                  Several commenters said this general                  general condition is at the discretion of
                                               adopting the proposed language                          condition should not apply to                         the district engineer. It is not possible to
                                               concerning bottomless culverts. The                     ephemeral streams. One commenter                      define, on a national basis, what
                                               general condition requires permanent                    stated that bottomless culverts should                constitutes a substantial disruption of
                                               and temporary crossings to be suitably                  only be used in waters that support                   the necessary life cycle movements of
                                               culverted, bridged, or otherwise                        special status aquatic life species. One              aquatic species indigenous to the
                                               designed and constructed to fulfill the                 commenter said the bottomless culvert                 waterbody. It is not appropriate to


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10243

                                               provide a national list of such species,                and specifications for projects nearly                   GC 4. Migratory Bird Breeding Areas.
                                               but this condition generally applies to                 ready for construction.                               We did not propose any changes to this
                                               all indigenous species in the waterbody                    We do not believe it is necessary to               general condition. One commenter said
                                               whose life-cycle movement may be                        provide a grandfathering provision for                this general condition should be
                                               affected by the project. How global                     the implementation of this general                    removed and regional conditions should
                                               climate change might affect the flow                    condition. The general condition                      be used instead to establish buffers for
                                               patterns and volumes of particular                      provides substantial flexibility to design            migratory bird breeding areas. This
                                               streams, rivers, or other waterbodies                   permanent and temporary crossings,                    commenter also stated that the
                                               cannot be predicted with a reasonable                   and uses a results-driven approach to                 requirement that NWP activities avoid
                                               degree of certainty. Crossing designs                   help ensure that NWP activities have                  breeding areas for migratory birds to the
                                               should be based on present conditions,                  only minimal adverse effects on the                   maximum extent practicable is not
                                               and the crossing may be modified at a                   movement of indigenous species of                     sufficient to protect those areas. One
                                               later time to accommodate changes in                    aquatic organisms. Existing construction              commenter said buffers established
                                               flow patterns and volumes that occur as                 and design standards can be used to                   through regional conditions would
                                               environmental conditions change.                        satisfy the objective of this general                 satisfy Endangered Species Act
                                                  One commenter stated that additional                 condition.                                            requirements more effectively.
                                               requirements for proper culvert sizing                     The general condition is adopted with                 This general condition addresses a
                                               should be added to this general                         the modifications discussed above.                    national concern for breeding areas for
                                               condition to ensure fish passage and                       GC 3. Spawning Areas. We did not                   migratory birds, and establishes a
                                               reduce failure. This commenter said that                propose any changes to this general                   consistent, national requirement for
                                               natural bankfull capacity of the stream                 condition. One commenter said this
                                                                                                                                                             regulated activities to avoid these areas
                                               channel should be maintained. One                       general condition should be removed,
                                                                                                                                                             to the maximum extent practicable.
                                               commenter also recommended that                         and replaced with regional conditions
                                                                                                                                                             Nationwide permit activities that may
                                               culverts have a width of 1.2 times the                  that require buffers for spawning areas.
                                                                                                                                                             affect migratory birds that are listed as
                                               bankfull width of the stream, and be                    This commenter reasoned that local
                                                                                                                                                             endangered or threatened under the
                                               embedded a minimum of two feet to                       buffer requirements would be more
                                                                                                                                                             Endangered Species Act, or that may
                                               maintain connected habitat and a stable                 appropriate for satisfying the
                                                                                                                                                             affect designated critical habitat, must
                                               stream bed. Another commenter stated                    requirements of the Endangered Species
                                                                                                                                                             comply with general condition 18,
                                               that stream crossings should maintain                   Act. Two commenters stated that only
                                                                                                                                                             endangered species.
                                               natural flows, substrate, and stream                    requiring avoidance of spawning areas
                                                                                                       to the maximum extent practicable is                     This general condition is adopted as
                                               grade from upstream to downstream of
                                                                                                       not sufficient, and one of those                      proposed.
                                               the culvert. This commenter suggested
                                                                                                       commenters said that the destruction of                  GC 5. Shellfish Beds. We did not
                                               adding a provision that states that
                                                                                                       spawning areas should not be allowed                  propose any changes to this general
                                               bridges or bottomless culverts are to be
                                               used when practicable.                                  under any circumstances. One                          condition. One commenter said the term
                                                  The proper sizing of culverts is more                commenter recommended modifying                       ‘‘concentrated shellfish populations’’
                                               appropriately addressed through an                      this general condition to prohibit                    should be defined to specify a method
                                               evaluation of the site for the proposed                 activities that adversely affected all                to be used to identify such areas,
                                               NWP activity and the surrounding area.                  spawning areas. One commenter                         because in some states shellfish beds are
                                               The general condition focuses on                        suggested explicitly including forage                 prominent features in waterways.
                                               maintaining the necessary life cycle                    fish habitat and submerged aquatic                    Another commenter suggested changing
                                               movements of aquatic species                            vegetation as protected resources in this             the text of the general condition to state
                                               indigenous to the waterbody, not the                    general condition.                                    that shellfish beds created as habitat
                                               geomorphic characteristics of the                          We are retaining this general                      cannot be used for harvesting, and
                                               waterbody. Maintenance of water flows,                  condition because spawning areas are                  NWPs 4 and 48 could not authorize
                                               including the proper width and height                   important components of the aquatic                   activities in those areas. One commenter
                                               of culverts, bridges, and other crossings,              environment and should be addressed at                recommended adding restoration
                                               is more appropriately addressed by                      the national level to ensure that NWP                 projects authorized by NWP 27 to this
                                               general condition 9, management of                      activities result in minimal adverse                  general condition.
                                               water flows. We have modified this                      effects on the aquatic environment.                      The identification of concentrated
                                               general condition to require permanent                  Division engineers may impose regional                shellfish populations for the purposes of
                                               and temporary crossings to be suitably                  conditions on this NWP to establish                   determining compliance with this
                                               culverted, bridged, or otherwise                        buffers to protect spawning areas for                 general condition is more appropriately
                                               designed and constructed to maintain                    particular species. Activities authorized             conducted by district engineers using
                                               low flows to sustain the movement of                    by NWPs must also comply with general                 local criteria and methods. Shellfish
                                               indigenous aquatic species.                             condition 18, endangered species. The                 beds established through habitat
                                                  Two commenters requested that, if the                intent of this general condition is to                restoration projects may be used for
                                               proposed changes to this general                        minimize adverse effects to spawning                  growing shellfish for consumption and
                                               condition are adopted, sufficient time                  areas caused by NWP activities, and it                other uses, and the decision on whether
                                               should be provided for state, county,                   is not feasible to completely prohibit                harvesting in those areas should be
                                               and local governments to update their                   activities that may affect spawning                   allowed is at the discretion of Federal,
                                               design requirements to include                          areas. In areas where there are                       state, and/or local authorities. We have
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                                               bottomless culverts. One commenter                      documented concerns for fish forage                   added shellfish seeding or habitat
                                               stated it would take approximately two                  habitat or submerged aquatic vegetation,              restoration activities authorized by NWP
                                               years to develop standards for                          division engineers can add regional                   27 to the list of NWP activities that may
                                               bottomless and buried culvert                           conditions to the NWPs to restrict or                 occur in areas of concentrated shellfish
                                               installation. Another commenter                         prohibit activities in those areas.                   populations, since NWP 27 activities
                                               expressed concern about the expense                        This general condition is adopted as               may improve habitat quality and further
                                               and time required to revise the plans                   proposed.                                             increase shellfish populations.


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                                                 This general condition is adopted                     accelerating passage of water and how                    It would be inappropriate to attempt
                                               with the modification discussed above.                  to prevent the restriction of normal                  to define the term ‘‘expected high
                                                 GC 6. Suitable Material. We did not                   water flows. Another commenter asked                  flows’’ since it would depend on the
                                               propose any changes to this general                     for a definition for the term ‘‘maximum               environmental setting of the NWP
                                               condition. One commenter                                extent practicable.’’ Two commenters                  activity. To comply with this general
                                               recommended that this general                           stated that impoundments that cause                   condition, the activity should not be
                                               condition should explicitly prohibit the                adverse effects to the aquatic                        substantially damaged by an expected
                                               use of tires as fill material, because tires            environment by changing water flows                   high flow. Activities in stream channels
                                               can leach toxic amounts of chemicals                    should not be authorized by NWPs and                  located in intertidal areas are subject to
                                               that are harmful to aquatic species. One                should instead require individual                     this general condition and if a proposed
                                               commenter said the general condition                    permits with agency coordination.                     NWP activity involves the alteration of
                                               should be changed so that only                             Specific measures for reducing                     intertidal stream channels and requires
                                               environmentally suitable or stable                      impacts caused by accelerated water                   pre-construction notification, the
                                               material may be used as fill, because                   flows or restricted water flows have to               district engineer will evaluate the
                                               many plastics are unstable when                         be determined on a case-by-case basis                 proposed activity and determine
                                               exposed to ultraviolet light or                         after considering the environmental                   whether it will result in minimal
                                               temperature changes. One commenter                      characteristics of the site of the NWP                adverse effects on the aquatic
                                               stated that contaminated sediments                      activity. It would not be appropriate to              environment. Bank stabilization
                                               should not be used as fill material. One                establish such measures at a national                 activities should be designed and
                                               commenter recommended modifying                         level. An activity-specific evaluation                constructed to withstand expected high
                                               this general condition to minimize                      would also have to be done to determine               flows. Adverse effects to littoral or
                                               impacts to habitat and species caused by                whether the minimization of these                     fluvial processes, or adverse effects
                                               the leaching of heavy metals, pesticides,               adverse effects has been accomplished                 caused by deflections of wave energy,
                                               and polycyclic aromatic hydrocarbons.                   to the maximum extent practicable.                    should be considered by district
                                                 We do not believe it is necessary to                  District engineers will use their                     engineers when evaluating pre-
                                               add tires or plastics to the list of                                                                          construction notifications for proposed
                                                                                                       discretion to determine compliance
                                               examples of unsuitable materials.                                                                             bank stabilization activities.
                                                                                                       with this general condition. The term
                                               Prohibiting the use of unsuitable                                                                                This general condition is adopted
                                                                                                       ‘‘practicable’’ is defined in the 404(b)(1)
                                               materials is more effective and                                                                               without change.
                                                                                                       Guidelines at 40 CFR 230.3(q) as
                                               enforceable than stating that only                                                                               GC 10. Fills Within 100-Year
                                                                                                       ‘‘available and capable of being done
                                               environmental suitable or stable                                                                              Floodplains. We did not propose any
                                                                                                       after taking into consideration cost,
                                               materials may be used. It is impractical,                                                                     changes to this general condition.
                                                                                                       existing technology, and logistics in
                                               for the purposes of the NWP program,                                                                          Several commenters explained the
                                                                                                       light of overall project purposes.’’ We do
                                               to establish what would constitute an                                                                         benefits of fully functional natural
                                                                                                       not agree that all impoundments should                floodplains. Most of the commenters
                                               environmentally suitable material since
                                               we are not aware of any Federal                         require individual permits;                           seemed to indicate that the Corps has
                                               standards that could be applied, other                  impoundments may be authorized by                     regulatory jurisdiction over non-wetland
                                               than those covered under Section 307 of                 general permits, including NWPs, as                   floodplains. Several commenters
                                               the Clean Water Act. A similar problem                  long as they have minimal individual                  objected to the general condition simply
                                               exists for identifying stable materials,                and cumulative adverse effects on the                 requiring compliance with Federal
                                               because the timeframe that might be                     aquatic environment and comply with                   Emergency Management Agency
                                               used to determine whether a particular                  the applicable terms and conditions,                  (FEMA) approved state or local
                                               material is ‘‘stable’’ would vary by the                including any general conditions,                     floodplain management requirements.
                                               material. The district engineer will                    regional conditions, and activity-                    Several commenters said that fills in
                                               make a case-by-case determination of                    specific conditions, of an NWP                        floodplains identified by state or local
                                               what constitutes unsuitable material.                   authorization.                                        FEMA-approved floodplain maps
                                               The current text of the general condition                  This general condition is adopted as               should only be authorized by individual
                                               prohibits the use of contaminated                       proposed.                                             permits, to ensure that state or local
                                               sediment as fill material, if it contains                  GC 9. Management of Water Flows.                   floodplain managers are aware of these
                                               toxic pollutants in toxic amounts. The                  We did not propose any changes to this                activities. Two commenters stated that
                                               general condition also prohibits the use                general condition. One commenter                      FEMA-approved standards are designed
                                               of materials that contain heavy metals,                 asked for a definition of the term                    to ensure the public is reasonably safe
                                               pesticides, and polycyclic aromatic                     ‘‘expected high flows’’ and said the                  from flooding, but these standards
                                               hydrocarbons in toxic amounts, in                       possibility of high flow events should be             provide insufficient protection to
                                               accordance with Section 307 of the                      anticipated during project                            waterways, floodplains, and other
                                               Clean Water Act.                                        implementation. One commenter stated                  aquatic resources. One commenter said
                                                 This general condition is adopted as                  that this general condition should be                 the Corps has an independent obligation
                                               proposed.                                               modified to prohibit changes to stream                to protect waters of the United States
                                                 GC 7. Water Supply Intakes. We did                    channels in intertidal areas. One                     and this obligation extends to protection
                                               not propose any changes to this general                 commenter stated that shoreline                       of floodplain resources.
                                               condition and no comments were                          structures and fills, such as seawalls,                  We acknowledge that floodplains
                                               received. The general condition is                      bulkheads, and revetments, reflect wave               provide important ecological functions
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                                               adopted as proposed.                                    energy that causes deep scouring of the               and services, but it must also be
                                                 GC 8. Adverse Effects from                            shore, and over-steepened local shore                 understood that most areas within 100-
                                               Impoundments. We did not propose any                    faces. These induced hydraulic effects                year floodplains are not subject to Clean
                                               changes to this general condition. One                  substantially alter the flow patterns in              Water Act jurisdiction, because a large
                                               commenter said the general condition                    intertidal features such as ocean and                 proportion of the area within 100-year
                                               should include specific examples of                     estuarine beaches, wetlands and                       floodplains consists of uplands. The
                                               how to reduce impacts associated with                   mudflats.                                             Corps regulatory authority in 100-year


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                                               floodplains is usually limited to                       with the resource agencies should be                  requirements. One commenter stated
                                               discharges of dredged or fill material                  required to protect habitat and                       that FEMA-approved state or local
                                               into waters of the United States,                       biodiversity in floodplains.                          floodplain management requirements do
                                               including jurisdictional wetlands. The                     Discharges of dredged or fill material             not adequately protect communities and
                                               protection of floodplains is more                       into waters of the United States located              resources from flood risks.
                                               appropriately addressed through land                    in 100-year floodplains often have                       We do not believe it is the Corps
                                               use planning and zoning, which is                       minimal adverse effects on the aquatic                responsibility to notify a prospective
                                               primarily the responsibility of state and               environment, individually and                         permittee of his or her responsibility to
                                               local governments, as well as tribal                    cumulatively. Division engineers can                  apply for a Conditional Letter of Map
                                               governments. Land use planning and                      impose regional conditions on one or                  Revision from FEMA if the overall
                                               zoning can provide the holistic                         more NWPs to restrict or prohibit their               project would modify the existing
                                               approach needed to protect floodplain                   use in waters of the United States                    regulatory floodway, the effective base
                                               functions and services, reduce economic                 within 100-year floodplains if those                  flood elevations, or a special flood
                                               losses through flood damage reduction,                  NWP activities would result in more                   hazard area. The discharge of dredged or
                                               and protect human health and welfare.                   that minimal adverse effects on the                   fill material authorized by NWP is likely
                                               If state, local, or tribal governments have             aquatic environment. In response to a                 to be only a small proportion of the
                                               zoned areas of 100-year floodplains for                 pre-construction notification, district               overall construction project within the
                                               residential developments or other uses,                 engineers may exercise discretionary                  100-year floodplain. Section E, Further
                                               and if those activities involve discharges              authority and require an individual                   Information, states that obtaining an
                                               of dredged or fill material into waters of              permit if the adverse effects on the                  NWP authorization does not obviate the
                                               the United States and meet the terms                    aquatic environment would be more                     need to obtain other Federal, state, or
                                               and conditions of an applicable NWP,                    than minimal. District engineers may                  local permits, approvals, or
                                               and the NWP activity results in minimal                 also add activity-specific conditions to              authorizations required by law. Building
                                               adverse effects on the aquatic                          an NWP authorization to require                       permits to authorize the construction of
                                               environment or other relevant public                    measures to minimize adverse effects on               the overall project are the responsibility
                                               interest review factors, then                           the aquatic environment caused by                     of the state or local government, and
                                               authorization by NWP is appropriate.                    NWP activities. Since the Corps                       should be based on compliance with the
                                                  This general condition also recognizes               Regulatory Program only regulates                     applicable FEMA-approved state or
                                               that FEMA, in partnership with state                    discharges of dredged or fill material                local floodplain management
                                               and local governments, is the more                      into waters of the United States and                  requirements. It is not the Corps
                                               appropriate authority for floodplain                    structures or work in navigable waters                responsibility to ensure that project
                                               management. It is not the responsibility                of the United States, and most areas of               proponents have complied with the
                                               of the Corps to ensure that project                     100-year floodplains are not wetlands as              applicable FEMA-approved state or
                                               proponents seek any required                            defined at 33 CFR 328.3(b) or otherwise               local floodplain management
                                               authorizations from state or local                      waters of the United States under 33                  requirements; the state or local
                                               floodplain managers. Such a                             CFR 328.3(a) and associated guidance,                 governments responsible for floodplain
                                               requirement would not constitute a                      the Corps does not have the authority to              management should enforce the
                                               condition that could be enforced by the                 take a holistic approach to floodplain                requirements they established to qualify
                                               Corps. We are not relying on FEMA-                      management. In areas of the country                   the community for the National Flood
                                               approved state or local floodplain                      where 100-year floodplains consist                    Insurance Program. If the floodplain
                                               management requirements to protect                      mostly of uplands, construction                       management requirements developed by
                                               waters of the United States located in                  activities in these uplands may have a                state or local governments are not
                                               100-year floodplains. The NWP program                   substantial adverse impact on these 100-              adequately protecting communities from
                                               utilizes other tools, such as regional                  year floodplains. We do not agree that                flood risks, then the agency that
                                               conditions, the district engineer’s ability             agency coordination should be required                approved those requirements is the
                                               to exercise discretionary authority to                  for fills in 100-year floodplains, because            appropriate entity to reexamine those
                                               revoke, suspend, or modify an NWP                       district engineers have the necessary                 requirements.
                                               authorization, and add activity-specific                expertise to evaluate pre-construction                   One commenter requested that the
                                               conditions to ensure that activities                    notifications for potential adverse                   Corps report the extent to which NWPs
                                               authorized by the NWP results in                        effects to habitat and biodiversity in                are being used in floodplains,
                                               minimal individual and cumulative                       these areas.                                          particularly in areas that have
                                               adverse effects on the aquatic                             Two commenters said the general                    experienced repeated flood damages.
                                               environment and other public interest                   condition should inform permittees of                 Two commenters stated that this general
                                               review factors.                                         their responsibility to apply for a                   condition ignores the Corps own public
                                                  Two commenters stated that fills in                  Conditional Letter of Map Revision from               interest review processes and does not
                                               100-year floodplains result in more than                FEMA if they are discharging dredged or               comply with Executive Order 11988.
                                               minimal adverse environmental effects                   fill material into waters of the United                  The Corps does not track the number
                                               and should not be authorized by NWP.                    States within 100-year floodplains. One               of NWP activities that have occurred in
                                               One commenter suggested that the                        commenter recognized that although                    floodplains, since our statutory
                                               Corps evaluate NWP activities in                        proposed development projects must                    authorities are focused on activities
                                               floodplains and riparian areas in a more                comply with all applicable Federal,                   involving discharges of dredged or fill
                                               holistic manner than it did in previous                 state, regional and local regulatory                  material into waters of the United States
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                                               NWP rulemaking efforts. One                             requirements, many project proponents                 and/or structures or work in navigable
                                               commenter said that authorizing                         do not apply for all required permits.                waters of the United States. As stated
                                               discharges of fill material in waters of                One commenter said that this general                  above, many areas of 100-year
                                               the United States in floodplains affects                condition should be modified to require               floodplains are uplands and not waters
                                               the ability to manage floodplains so that               documentation of compliance with                      of the United States. In addition, there
                                               there are no adverse impacts. One                       applicable FEMA-approved state or                     is no consistent national coverage in
                                               commenter stated that coordination                      local floodplain management                           floodplain maps, since such maps are


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                                               10246                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               either not available for some areas of the              NWPs, including the terms and                            GC 12. Soil Erosion and Sediment
                                               country or the existing maps are                        conditions, pre-construction notification             Controls. We did not propose any
                                               outdated. This general condition is                     requirements, and the authority for                   changes to this general condition. One
                                               consistent with our regulations on the                  district engineers to exercise                        commenter said the general condition
                                               public interest review, specifically 33                 discretionary authority and either                    should provide specific steps that will
                                               CFR 320.4(g), consideration of property                 require individual permits or add                     ensure protection of downstream water
                                               ownership, 33 CFR 320.4(j), other                       conditions to NWP authorizations, to                  quality during the construction of
                                               Federal, state, or local requirements,                  ensure that NWP activities have                       permitted activities. Two commenters
                                               and 33 CFR 320.4(l), floodplain                         minimal adverse effects on the aquatic                suggested adding requirements to
                                               management. Section 320.4(g)(1) states                  environment, including public interest                prevent the erosion of sediments
                                               that an ‘‘inherent aspect of property                   review factors such as floodplain values              resulting from harvesting shellfish. One
                                               ownership is the right to reasonable                    and flood hazards.                                    commenter stated that disturbed areas
                                               private use.’’ Section 320.4(j)(2) states                  Three commenters said that using                   should be stabilized and vegetated areas
                                               that the primary responsibility for land                NWPs to authorize discharges of                       should be restored to pre-construction
                                               use planning and zoning is with state                   dredged of fill material into waters of               conditions or improved conditions.
                                               and local governments. Section 320.4(l)                 the United States will result in                         Specific best management practices
                                               requires consideration of whether                       increased flood damages in coastal and                and other measures to protect
                                               practicable alternatives to floodplain                  riparian areas by reducing the amount of              downstream water quality are more
                                               development are available, and if there                 aquatic area available to absorb future               appropriately addressed by considering
                                               are no practicable alternatives, then                   floods that will likely be larger and                 the activity-specific environmental
                                               impacts to human health, safety, and                    more frequent due to climate change.                  setting and adopting practices and
                                               welfare, risks of flood losses, and                     They suggested increasing the                         measures that will control soil erosion
                                               impacts to natural and beneficial                       application fee for NWPs to cover the                 and sediment loads on the site of the
                                               aspects of floodplains should be                        estimated cost of permit processing and               authorized activity. District engineers
                                               minimized to the maximum extent                         to offset future economic impacts of                  may add conditions to the NWP
                                               practicable. This NWP general                           authorizing floodplain development.                   authorizations to require permittees to
                                               condition, as well as the other terms and                  The flood storage capacity of a coastal            use specific best management practices
                                               conditions of the NWPs, such as the                     or inland floodplain is dependent                     or other techniques to minimize soil
                                               acreage and linear foot limits for losses               primarily on its topographic                          erosion and reduce transport of
                                               of waters of the United States, are                     characteristics, including the amount of              sediment to waters and wetlands. We do
                                               consistent with the principles in these                                                                       not believe it is necessary to modify this
                                                                                                       land area available for storing flood
                                               regulations because they require                                                                              general condition to address sediment
                                                                                                       waters. Uplands also provide important
                                               avoidance and minimization of adverse                                                                         movement that may occur during
                                                                                                       ecological services such as flood storage.
                                               effects on the aquatic environment.                                                                           shellfish harvesting activities, because
                                                                                                       Flood damage reduction is more
                                               Executive Order 11988 states that                                                                             such movements are usually minor and
                                                                                                       effectively accomplished through land
                                               Federal agencies are to consider                                                                              temporary and have minimal adverse
                                                                                                       use planning and zoning, which as
                                               alternatives to ‘‘avoid adverse effects’’ to                                                                  effects on the aquatic environment. The
                                                                                                       discussed above, is primarily the
                                               floodplains, and ‘‘minimize potential                                                                         restoration of areas where temporary
                                                                                                       responsibility of state, local, and tribal
                                               harm to or within the floodplain’’. The                                                                       fills have been placed, including
                                                                                                       governments. Charging application fees
                                               Executive Order also says that agencies                                                                       revegetating those areas, is more
                                                                                                       for NWP pre-construction notifications                appropriately addressed by general
                                               should also consider flood hazards in
                                                                                                       or verification requests is not being                 condition 13, removal of temporary fills.
                                               the permit programs they administer.
                                                                                                       considered at this time.                                 This general condition is adopted
                                               The adoption of general condition 10
                                                                                                          This general condition is adopted as               without change.
                                               into the NWP program is consistent
                                                                                                       proposed.                                                GC 13. Removal of Temporary Fills.
                                               with Executive Order 11988. It is also
                                               consistent with Executive Order 13132,                     GC 11. Equipment. We did not                       We did not propose any changes to this
                                               Federalism, because it recognizes the                   propose any changes to this general                   general condition. One commenter said
                                               cooperative approach the Federal                        condition. One commenter stated that                  the general condition should require the
                                               government has taken with state and                     the condition should be changed to                    removal of temporary fills during
                                               local governments for floodplain                        include streams, and not be limited to                periods of low-flow or no-flow so that
                                               management (i.e., federal review, by                    wetlands or mudflats.                                 there will be little or no downstream
                                               FEMA, of state or local floodplain                         The intent of this general condition is            transport of the fill material.
                                               management requirements).                               to ensure that heavy equipment used in                   It would be inappropriate to require
                                                  Two commenters suggested                             special aquatic sites such as wetlands                that temporary fills be removed only
                                               reinstating the provisions in the 2002                  and mudflats does not cause more than                 during periods of low-flow or no-flow
                                               NWPs that prohibited discharges of                      minimal disturbances to their soils. The              because it is not always practicable to
                                               dredged or fill material into waters of                 substrate of stream beds is generally not             wait until water flows are low or absent.
                                               the United States within mapped 100-                    considered to be soil, and other general              In addition, more adverse effects to the
                                               year floodplains that would result in                   conditions such as general condition 12,              aquatic environment may occur if the
                                               above-grade fills for residential,                      soil and sediment controls, are more                  permittee is required to wait until low
                                               commercial and institutional                            appropriate to control the movement                   flow or no flow conditions exist. It is
                                               developments, agriculture activities,                   and disturbance of stream bed                         usually best to remove temporary fills as
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                                               recreational facilities, stormwater                     sediments. District engineers may also                soon as possible to minimize sediment
                                               management facilities, and mining                       add activity-specific conditions to NWP               loads to downstream waters or to nearby
                                               activities.                                             authorizations, such as requirements to               wetlands. However, general condition
                                                  We do not agree that the approach                    use best management practices, to                     12, soil erosion and sediment controls,
                                               taken in the 2002 NWPs for fills in 100-                minimize disturbances to stream beds.                 encourages permittees to work in waters
                                               year floodplains should be reinstated.                     This general condition is adopted as               of the United States during periods of
                                               There are sufficient safeguards in the                  proposed.                                             low or no flow, when possible.


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                                                  This general condition is adopted as                 any proposed expansions or                            treaty fishing and hunting rights. The
                                               proposed.                                               modifications of a previously authorized              regional conditioning process helps
                                                  GC 14. Proper Maintenance. We did                    NWP activity comply with the terms of                 identify those rights on a geographic
                                               not propose any changes to this general                 the NWPs, they can be authorized by                   basis, so that prospective users of the
                                               condition. One commenter                                NWP. Expansions or modifications that                 NWPs and Corps districts are aware of
                                               recommended changing the general                        are not separate single and complete                  those tribal rights. Nationwide permit
                                               condition to ensure that maintenance                    projects from the previously authorized               activities must also comply with Tribal
                                               activities minimize impacts to waters                   activity have to comply with the terms                water quality standards, if those
                                               and maintain downstream water quality.                  and conditions of the NWP, including                  activities involve discharges into waters
                                               Another commenter suggested adding a                    any acreage or linear foot limits that                covered by Tribal water quality
                                               provision that would require proper                     would apply to both the previously                    standards. Activities authorized by
                                               maintenance to ensure compliance with                   authorized activity and the NWP                       NWPs must also comply with general
                                               applicable NWP general conditions as                    activity included in the expansion or                 condition 18, endangered species,
                                               well as conditions added to an NWP                      modification. If the expansion or                     which will help support the recovery of
                                               verification.                                           modification is determined by the                     listed salmon species.
                                                  The original intent of this general                  district engineer to be a separate single                The general condition is adopted as
                                               condition was to ensure that NWP                        and complete project, then that                       proposed.
                                               activities are maintained so that they do               expansion or modification activity may                   GC 18. Endangered Species. We
                                               not endanger public safety. There are                   qualify for separate NWP authorization.               proposed to modify paragraph (a) of this
                                               other general conditions that more                      We do not agree that this general                     general condition to clarify that both
                                               directly address minimization (e.g.,                    condition results in piecemealing,                    direct and indirect effects are to be
                                               general condition 23, mitigation) and                   because the NWP authorization applies                 taken into account when assessing
                                               water quality (e.g., general condition 12,              to each single and complete project.                  whether an activity may jeopardize the
                                               soil erosion and sediment controls, and                 District engineers will exercise                      continued existence of a threatened or
                                               general condition 25, water quality). We                discretionary authority and require                   endangered species or a species
                                               agree that proper maintenance should                    other forms of Department of the Army                 proposed for such designation, or
                                               also be required to comply with the                     authorization if the use of the NWP to                destroy or adversely modify the critical
                                               terms and conditions of an NWP                          authorize activities in a watershed or                habitat of such species. In addition, we
                                               authorization, including any activity-                  other geographic area will result in more             proposed to modify paragraph (e) to
                                               specific conditions added to an NWP                     than minimal cumulative adverse effects               include definitions of ‘‘take’’ and
                                               authorization by the district engineer.                 on the aquatic environment.                           ‘‘harm.’’ Another proposed change was
                                               For example, road crossings should be                      This general condition is adopted                  to add a new paragraph (f) to provide
                                               properly maintained to continue                         without change.                                       prospective permittees with guidance
                                               complying with general condition 2,                        GC 16. Wild and Scenic Rivers. We                  on where they can obtain information
                                               aquatic life movements.                                 proposed to modify this general                       on the locations of listed species and
                                                  This general condition is adopted                    condition to clarify that information on              their critical habitat. One commenter
                                               with the change discussed above.                        these rivers should be obtained from the              expressed support for the proposed
                                                  GC 15. Single and Complete Project.                  specific Federal land management                      modifications.
                                               We did not propose any changes to this                  agency responsible for the designated                    Several commenters requested
                                               general condition. Two commenters                       Wild and Scenic River or study river.                 clarification and definitions for the
                                               recommend removing the term single                      One commenter supported reissuing the                 terms ‘‘directly’’ and ‘‘indirectly’’ as
                                               and complete project. Two commenters                    general condition.                                    used in paragraph (a). In addition,
                                               said the definition of ‘‘single and                        The general condition is adopted as                several commenters objected to the
                                               complete project’’ is flawed and that the               proposed.                                             addition of ‘‘indirectly’’ into the general
                                               acreage limit of an NWP should apply                       GC 17. Tribal Rights. We did not                   condition, because they believe only
                                               to the entire project, not just each single             propose any changes to this general                   direct effects should be considered.
                                               and complete project. One commenter                     condition. One commenter stated that                  Several commenters expressed concern
                                               suggested changing the general                          the use of the NWPs will be in violation              that this will result in the Corps
                                               condition to state that an NWP activity                 of tribal treaty rights, tribal water                 evaluating direct and indirect effects
                                               cannot be expanded or modified at a                     quality standards, and the Clean Water                that are far from the NWP activity.
                                               later date. Two commenters said the                     Act, and threaten salmon recovery                        To provide clarification on the use of
                                               general condition may allow                             efforts in the Pacific Northwest.                     the terms ‘‘direct’’ and ‘‘indirect’’ in the
                                               piecemealing under the NWPs.                               Division engineers may impose                      context of general condition 18 and the
                                                  It has been a long-standing principle                regional conditions on the NWPs to                    NWPs in general, we are adding
                                               in the NWP program that the NWPs                        restrict or prohibit their use in waters              definitions of ‘‘direct effects’’ and
                                               authorize single and complete projects.                 where NWP activities may result in                    ‘‘indirect effects.’’ The definitions were
                                               This general condition was added to the                 more than minimal adverse effects on                  adapted from the definitions provided
                                               NWPs in 2007 to make that clear to                      the aquatic environment or any other                  in the Council of Environmental
                                               users of the NWPs. The general                          public interest review factor, including              Quality’s National Environmental Policy
                                               condition is consistent with the NWP                    fish and wildlife values. We have                     Act regulations at 40 CFR 1508.8. The
                                               regulations at 33 CFR part 330 that were                directed our districts to initiate                    definition of ‘‘indirect effect’’ is also
                                               last revised in 1991, especially the                    government-to-government consultation                 generally consistent with the Services’
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                                               definition at 33 CFR 330.2(i). Some of                  with Tribes to develop and propose                    definition within the definition of
                                               the NWPs issued in the past included                    regional conditions to protect tribal                 ‘‘effects of the action’’ at 50 CFR 402.02.
                                               terms and conditions stating the NWP                    treaty resources and other resources of               The addition of indirect effects to
                                               authorized single and complete projects.                importance to Tribes. Under this general              paragraph (a) of the general condition is
                                               In 2007, we added a general condition                   condition, no activity may be authorized              consistent with the U.S. Fish and
                                               to make it clear that all NWPs authorize                by NWP if it impairs reserved tribal                  Wildlife Service’s and National Marine
                                               single and complete projects. As long as                rights, such as reserved water rights or              Fisheries Service’s Endangered Species


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                                               10248                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               Act Section 7 regulations for                           may be situations where that agency’s                 then he or she can assume that the
                                               considering whether a proposed activity                 section 7 compliance does not                         Corps has determined that there is ‘‘no
                                               may jeopardize the continued existence                  adequately address the activities                     effect’’ on a listed species. In addition,
                                               of a listed species or may result in the                authorized by an NWP and their effects                one of these commenters said that for
                                               destruction or adverse modification of                  on listed species or designated critical              projects that ‘‘may affect’’ a listed
                                               critical habitat (see the definitions of                habitat. In those situations, the district            species, if the section 7 consultation is
                                               ‘‘destruction or adverse modification’’                 engineer may conduct additional                       not concluded within 135 calendar days
                                               and ‘‘jeopardize the continued existence                section 7 consultation to satisfy the                 of initiation, the activity would be
                                               of’’ at 50 CFR 402.02). The Corps is                    requirements of the Endangered Species                authorized to proceed as if a ‘‘no effect’’
                                               obligated by the section 7 consultation                 Act. If it is not sufficient, then the non-           determination has been made.
                                               regulations to consider indirect effects                Federal permittee has to follow                          We have modified the first sentence of
                                               caused by proposed NWP activities, and                  paragraph (c) of this general condition               paragraph (c) to state that non-Federal
                                               appropriate distances for such indirect                 instead.                                              permittees must submit a pre-
                                               effects will have to be determined on a                    One commenter said that this general               construction notification if the
                                               case-by-case basis by district engineers.               condition places the responsibility for               notification requirement is triggered.
                                                  One commenter stated that the district               determining whether a proposed                        The 45-day period in paragraph (c) of
                                               engineer should evaluate the                            activity may affect listed species in the             this general condition is intended to be
                                               Endangered Species Act (ESA)                            hands of the permittee. One commenter                 consistent with the 45-day review
                                               compliance documentation provided by                    requested clarification on how the                    period for pre-construction notifications
                                               the Federal agency, and determine                       ‘‘might be affected’’ threshold in the                provided in paragraph (a) of general
                                               whether or not it is sufficient to address              first sentence is to be determined by an              condition 31, pre-construction
                                               ESA compliance for the NWP activity,                    applicant, because it is unclear and                  notification. Under paragraph (a) of
                                               or whether additional ESA consultation                  leaves room for broad interpretation.                 general condition 31, a prospective
                                               is necessary. Two commenters                            One commenter stated that the word                    permittee may not begin an NWP
                                               recommended modifying paragraph (b)                     ‘‘might’’ in the second sentence of                   activity that requires pre-construction
                                               to clarify that documentation of                        paragraph (c) should be changed to                    notification until he or she has been
                                               compliance with the Endangered                          ‘‘may.’’                                              notified in writing that the activity may
                                               Species Act provided by a Federal                          It is the Corps’ responsibility to make            proceed under the NWP, or 45 calendar
                                               agency will be sufficient and that Corps                ‘‘may affect’’ determinations for the                 days have passed since the district
                                               review and concurrence with that                        purposes of the ESA, and the ‘‘might be               engineer received a complete pre-
                                               section 7 consultation is not required.                 affected’’ threshold is intended to be a              construction notification and no written
                                               One commenter said that paragraph (b)                   cautionary threshold to give district                 notice has been provided to the
                                               should make it clear that a state agency                engineers the opportunity to evaluate                 applicant by the district or division
                                               operating under federal funding can also                proposed activities and make their effect             engineer. However, if pre-construction
                                               provide the section 7 compliance                        determinations. Prospective permittees                notification was required by paragraph
                                               documentation obtained by the Federal                   are required to submit pre-construction               (c) of general condition 18, the
                                               agency that oversees its activities, and                notifications if the proposed NWP                     prospective permittee may not proceed
                                               not have to reinitiate consultation.                    activity has the potential to affect a                with the NWP activity until notified by
                                               Another commenter stated that when a                    listed species, is in the vicinity of a               the Corps, even if the 45 calendar days
                                               non-Federal permittee is operating on                   listed species, or is located in                      have passed, because the Corps
                                               behalf of a Federal agency, they should                 designated critical habitat. If the Corps             regulations at 33 CFR 330.4(f)(2) state
                                               follow paragraph (b) of this general                    determines there will be no effect on                 that NWP activities cannot commence
                                               condition instead of paragraph (c).                     listed species or designated critical                 until the requirements of the ESA have
                                                  We have added a sentence to                          habitat, then ESA section 7 consultation              been satisfied and the district engineer
                                               paragraph (b) to state that the district                is not necessary. If the district engineer            has notified the applicant that the
                                               engineer will review the other Federal                  determines there will be an effect that               activity is authorized by NWP. It may
                                               agencies’ documentation of compliance                   requires ESA section 7 consultation,                  take more than 135 days to complete
                                               with the Endangered Species Act and                     then he or she will initiate either formal            section 7 consultation, and the NWP
                                               determine whether that compliance is                    or informal consultation with the U.S.                activity may not proceed until after
                                               sufficient for the NWP activity, or                     Fish and Wildlife Service and/or the                  consultation has been completed.
                                               whether additional ESA consultation is                  National Marine Fisheries Service, as                    Two commenters requested
                                               necessary before the activity can be                    appropriate.                                          clarification on what work the
                                               authorized by NWP. We believe this                         One commenter said paragraph (c)                   prospective permittee is prohibited from
                                               provision is necessary to address                       should clearly state that a pre-                      conducting prior to the Corps making a
                                               situations where the consultation                       construction notification is to be                    determination of ‘‘no effect’’ or until
                                               conducted by the other Federal agency                   submitted if any listed species or                    section 7 consultation is completed.
                                               does not adequately cover the direct and                designated critical habitat might be                  Two commenters requested clarification
                                               indirect effects on listed species or                   affected or is in the vicinity of the                 of the term ‘‘vicinity’’ in this general
                                               designated critical habitat caused by the               project, to ensure that another form of               condition.
                                               NWP activity. For similar reasons, we                   notification is not used. Two                            The work covered by the general
                                               do not agree that it would be                           commenters stated that 30 days is                     condition and the Corps regulations at
                                               appropriate to modify paragraph (b) to                  sufficient for the Corps to notify the                33 CFR 330.2(f) depends on the scope of
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                                               explicitly state that state agencies may                applicant of its ‘‘may affect’’                       analysis for the ESA section 7
                                               rely on ESA compliance documentation                    determination and asked why the                       consultation. The Corps follows the U.S.
                                               obtained by the Federal agency that                     general condition allows 45 days. Two                 Fish and Wildlife Service’s and National
                                               provides them with funding for an                       commenters suggested modifying this                   Marine Fisheries Service’s regulations at
                                               activity. District engineers will generally             general condition to state that if the                50 CFR part 402 and Endangered
                                               accept another Federal agency’s                         prospective permittee does not receive a              Species Consultation Handbook to
                                               compliance with section 7, but there                    response from the Corps within 45 days,               determine the section 7 scope of


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                            10249

                                               analysis. The scope of analysis includes                endangered species or their critical                  change on endangered and threatened
                                               the direct and indirect effects of the                  habitat.                                              species and their critical habitat is more
                                               NWP activity, as well as the effects of                    The definition of ‘‘take’’ is identical to         appropriately addressed through the
                                               other activities that are interrelated and              the definition in the Endangered                      section 7 consultation process, since
                                               interdependent with that activity (see 50               Species Act (see 16 U.S.C. 1532(19)).                 those effects are likely to be site-
                                               CFR 402.02). The section 7 scope of                     The definition of ‘‘harm’’ is the same as             specific.
                                               analysis will be determined by district                 the definition in the U.S. Fish and                      The general condition is adopted with
                                               engineers on a case-by-case basis.                      Wildlife Service’s regulations (50 CFR                the modifications discussed above.
                                               Generally, the applicant cannot begin                   17.3) and the National Marine Fisheries                  GC 19. Migratory Bird and Bald and
                                               any work for which a Department of the                  Service’s regulations (50 CFR 222.102).               Golden Eagle Permits. We are adding
                                               Army permit is required until the                       The definitions of ‘‘take’’ and ‘‘harm’’              this new general condition to clarify
                                               applicable ESA provisions have been                     were added to this condition to provide               that permittees are responsible for
                                               satisfied. The term ‘‘vicinity’’ cannot be              clarification for users of the NWPs, and              complying with the Migratory Bird
                                               defined at a national level, since the                  facilitate compliance with the                        Treaty Act and the Bald and Golden
                                               extent of the vicinity depends on a                     Endangered Species Act.                               Eagle Protection Act, and obtaining any
                                               variety of factors, including the species                  One commenter stated that paragraph                ‘‘take’’ permits that may be required
                                               that might be affected, the proposed                    (f) should provide web links to the                   under the U.S. Fish and Wildlife
                                               activity, and the environmental setting.                Services’ ESA Section 7 regulations and               Service’s regulations issued under those
                                                  One commenter said pre-construction                  other documents. Another commenter
                                                                                                                                                             two statutes. The Migratory Bird Treaty
                                               notification should not be required for                 said the Corps should defer to the U.S.
                                                                                                                                                             Act and the Bald and Golden Eagle
                                               NWP activities that require section 7                   Fish and Wildlife Service on effects
                                                                                                                                                             Protection Act differ from the
                                               compliance, if they would not otherwise                 determinations.
                                                                                                          Paragraph (f) provides links to web                Endangered Species Act in that those
                                               require a pre-construction notification.                                                                      two statutes and their implementing
                                               This commenter stated that the                          sites for the U.S. Fish and Wildlife
                                                                                                       Service and the National Marine                       regulations establish the project
                                               prospective permittee should only be                                                                          proponent as the responsible party who
                                               required to submit the appropriate                      Fisheries Service to assist prospective
                                                                                                       permittees with obtaining information                 has to apply to the U.S. Fish and
                                               documentation for section 7
                                                                                                       on listed species and other ESA                       Wildlife Service for take permits, if such
                                               consultation. One commenter stated that
                                                                                                       documents. We do not believe it is                    permits are required.
                                               this general condition should also apply
                                               to state-listed threatened and                          necessary to provide a link to the                       The U.S. Fish and Wildlife Service’s
                                               endangered species.                                     Services’ section 7 consultation                      implementing regulations that establish
                                                  This general condition is consistent                 regulations at 50 CFR part 402 since it               general permit requirements for
                                               with the NWP regulations at 33 CFR                      is the Corps responsibility to conduct                migratory birds permits at 50 CFR part
                                               330.4(f)(2), which requires the                         section 7 consultation. It is also the                21 state that ‘‘[n]o person may take,
                                               prospective permittee to notify the                     Corps responsibility to make ‘‘may                    possess, import, export, transport, sell,
                                               district engineer if any Federally-listed               effect’’ determinations for the purposes              purchase, barter, or offer for sale,
                                               endangered or threatened species, or                    of the ESA and district engineers have                purchase, or barter, any migratory bird,
                                               critical habitat, might be affected or is               the option of soliciting advice from the              or the parts, nests, or eggs of such bird
                                               in the vicinity of the project. The                     U.S. Fish and Wildlife and/or the                     except as may be permitted under the
                                               prospective permittee must submit the                   National Marine Fisheries Service prior               terms of a valid permit issued pursuant
                                               information required for a pre-                         to making their determinations.                       to the provisions of this part and part 13
                                               construction notification, so that the                     One commenter recommended that                     of this chapter, or as permitted by
                                               district engineer will have sufficient                  surveys be conducted for state- and                   regulations in this part, or part 20 of this
                                               information to commence evaluation of                   Federally-listed species prior to the start           subchapter (the hunting regulations), or
                                               the proposed activity and its effects on                of construction. Another commenter                    part 92 of subchapter G of this chapter
                                               listed species or critical habitat. It                  said the lack of a requirement for                    (the Alaska subsistence harvest
                                               would be inappropriate to expand the                    surveys makes the pre-construction                    regulations).’’ The term ‘‘person’’ is
                                               scope of this general condition to cover                notification requirement in this general              defined at 50 CFR 10.12 as ‘‘any
                                               state-listed endangered and threatened                  condition ineffective. One commenter                  individual, firm, corporation,
                                               species, since that is a regional issue                 said that ‘‘objective science’’ is needed             association, partnership, club, or private
                                               that is best addressed through state laws               to identify habitats and species that may             body, any one or all, as the context
                                               and regulations. If a state is concerned                be affected by activities authorized by               requires.’’ These regulations do not
                                               about the potential impacts of one or                   NWPs. One commenter stated that the                   identify a federal permitting agency as
                                               more NWPs on state-listed species, the                  Corps must consider the effects of                    a ‘‘person’’ responsible for obtaining a
                                               state may ask the Corps district to                     climate change during the consultation                take permit, where that federal agency is
                                               consider adding regional conditions to                  process.                                              not actually carrying out the activity
                                               help protect state-listed endangered or                    The need for surveys for Federally                 that may result in the ‘‘take’’ of a
                                               threatened species.                                     listed species is to be determined by the             migratory bird. Likewise, the U.S. Fish
                                                  Two commenters recommended                           district engineer on a case-by-case basis.            and Wildlife Service’s implementing
                                               removal of the definitions of ‘‘take’’ and              It is not possible to require surveys for             regulations for the Bald and Golden
                                               ‘‘harm’’ from this general condition and                the tens of thousands of activities                   Eagle Protection Act at 50 CFR part 22
                                               replacing those definitions with a                      authorized by NWP each year. Project                  do not include any provisions stating
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                                               reference to the Endangered Species                     proponents are encouraged, but not                    that Federal permitting agencies are
                                               Act, to reduce the potential for                        required to contact the U.S. Fish and                 responsible for assisting project
                                               inconsistencies. One commenter said                     Wildlife Service or the National Marine               proponents in obtaining permits to
                                               the Corps should instead use the U.S.                   Fisheries Service for assistance in                   authorize the taking, possession, and
                                               Fish and Wildlife Service’s regulations                 determining whether listed species or                 transportation within the United States
                                               to determine what constitutes an effect                 critical habitat might be affected by the             of bald eagles and golden eagles and
                                               or jeopardizes any threatened or                        proposed activity. The effects of climate             their parts, nests, and eggs.


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                                               10250                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                                  Executive Order 13186 discusses the                  begin the NWP activity until the district             National Historic Preservation Act. Non-
                                               responsibilities of Federal agencies to                 engineer notifies him or her that the                 Federal permittees are required to
                                               protect migratory bird for the purposes                 section 106 consultation has been                     submit pre-construction notifications if
                                               of the Migratory Bird Treaty Act. The                   completed (which may include                          an NWP activity may have the potential
                                               Executive Order applies only to those                   execution of a memorandum of                          to cause effects to historic properties,
                                               actions that are directly carried out by                agreement to address adverse effects or               and the district engineer will evaluate
                                               Federal agencies (see Section 2,                        the concurrence of the State or Tribal                those pre-construction notifications to
                                               paragraph (h)). Actions carried out by                  Historic Preservation Officer), or the                determine if section 106 consultation is
                                               non-Federal entities with Federal                       activity has no potential to cause effects            necessary. The general condition also
                                               assistance are not subject to the                       to historic properties.                               states that district engineers will make
                                               Executive Order. Department of the                         One commenter said the Corps should                reasonable and good faith efforts to
                                               Army permits can be considered a form                   more closely follow paragraph (b) of the              identify historic properties and effects
                                               of Federal assistance since they provide                general condition and not require                     on those properties. The district
                                               authorization to non-Federal entities to                redundant section 106 review on                       engineer may request additional
                                               comply with Federal laws such as                        projects that are being undertaken by                 information from the applicant where
                                               Section 404 of the Clean Water Act and                  another Federal agency. Three                         necessary to evaluate potential effects of
                                               Section 10 of the Rivers and Harbors Act                commenters suggested that the Corps                   the activity on historic properties or to
                                               of 1899.                                                section 106 responsibilities should be                initiate section 106 consultation. We
                                                  This general condition is adopted.                   satisfied if another Federal agency                   cannot require prospective permittees to
                                                  GC 20. Historic Properties. We                       formally accepts responsibility for                   seek assistance from a State Historic
                                               proposed to modify paragraph (c) of this                conducting section 106 consultation and               Preservation Officer or a Tribal Historic
                                               general condition to make a more                        is the lead for this responsibility                   Preservation Officer, search the National
                                               general reference to the Corps                          through either a programmatic                         Register of Historic Preservation, or
                                               Regulatory Program’s current                            agreement or on a project-by-project                  consult with qualified historic property
                                               procedures for compliance with Section                  basis. One commenter said that                        professionals. However, this general
                                               106 of the National Historic                            duplicate regulatory efforts are                      condition requires prospective
                                               Preservation Act, since we are using                    unnecessary, particularly when another                permittees to provide a list of ‘‘ * * *
                                               Appendix C to 33 CFR part 325, as well                  Federal agency has a lead role.                       any historic properties listed,
                                               as various guidance documents to                           District engineers will generally                  determined to be eligible for listing on,
                                               address the Advisory Council on                         accept another Federal agency’s                       or potentially eligible for listing on the
                                               Historic Preservation’s revised                         compliance with section 106, but there                National Register of Historic Places,
                                               regulations at 36 CFR part 800.                         may be situations where that agency’s                 including previously unidentified
                                                  In response to the February 16, 2011,                section 106 compliance does not                       properties,’’ if these properties may be
                                               proposal to reissue the NWPs, including                 adequately address the activities                     affected. The permittee may obtain such
                                               the proposed modification of this                       authorized by an NWP and their effects                information from the State Historic
                                               general condition, we received                          on historic properties. In those                      Preservation Officer or Tribal Historic
                                               comments on the Corps use of                            situations, the district engineer may                 Preservation Officer, the National
                                               Appendix C and the current guidance.                    conduct additional section 106                        Register of Historic Places, or other
                                               Concerns regarding the use of Appendix                  consultation to satisfy the requirements              sources of information on historic
                                               C and the current guidance are outside                  of the National Historic Preservation                 properties.
                                               the scope of the NWP rule, and are not                  Act. We have added a sentence to                         One commenter recommended
                                               addressed in this rule.                                 paragraph (b) to address these                        providing language to clearly state when
                                                  Several commenters asked whether an                  situations.                                           a pre-construction notification is or is
                                               NWP authorization or verification                          One commenter said the general                     not required based on the presence or
                                               would be issued before a State Historic                 condition does not clearly specify who                absence of known historic properties.
                                               Preservation Officer concurs to an effect               is responsible for the identification and             This commenter suggested that if a
                                               determination or formalizes an                          evaluation of historic properties and                 prospective permittee independently
                                               agreement regarding historic properties.                determination of effects. Another                     determines that no historic properties
                                               One commenter stated that although the                  commenter stated that the general                     exist within the boundaries of the
                                               NWP regulations provide that the Corps                  condition does not adequately ensure                  project area, then pre-construction
                                               may issue an NWP before a                               section 106 compliance because the                    notification is not necessary. The
                                               memorandum of agreement is executed,                    Corps may not receive enough                          commenter also said that if the district
                                               district engineers have, in some cases,                 information from permittees to fully                  engineer has to be notified because of
                                               not issued NWP verifications without                    take into account the effect a project                potential effects to historic properties,
                                               State Historic Preservation Officer                     may have on a historic property. This                 the notification should not be in the
                                               concurrence.                                            commenter also said that while                        form of a pre-construction notification.
                                                  This general condition requires non-                 paragraph (c) states that prospective                    We do not agree that the general
                                               Federal permittees to submit pre-                       permittees may seek assistance from the               condition should be modified to
                                               construction notifications if the NWP                   State or Tribal Historic Preservation                 explicitly state that prospective
                                               activity may have the potential to cause                Officer and from the National Register of             permittees do not have to submit pre-
                                               effects to historic properties. In such                 Historic Places, there is no requirement              construction notifications if they
                                               cases, the district engineer will initiate              that an applicant consult with these                  determine there are no known historic
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                                               section 106 consultation with the                       parties or that an applicant coordinate               properties within the boundaries of the
                                               appropriate State Historic Preservation                 an effect determination with a qualified              project area. Such a provision would be
                                               Officer or Tribal Historic Preservation                 professional with relevant historic                   inappropriate, because there could be
                                               Officer. Further consultation may be                    properties experience.                                visual or noise effects to historic
                                               conducted with the Advisory Council                        The Corps is ultimately responsible                properties outside of the project area
                                               on Historic Preservation, if necessary.                 for determining compliance with the                   that have to be evaluated through the
                                               The prospective permittee may not                       requirements of Section 106 of the                    section 106 consultation process. The


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10251

                                               current general condition is the proper                 these changes to be consistent with the               condition because provisions for the
                                               approach, in which the prospective                      language found in other general                       discovery of unknown historic or
                                               permittee seeking NWP authorization is                  conditions.                                           archaeological remains are already
                                               required to submit a pre-construction                      One commenter stated that the                      codified in the NWP regulations and in
                                               notification if the proposed activity                   proposed condition relies on the                      the Corps Regulatory Program’s
                                               might have the potential to cause effects               permittee, who is generally not qualified             implementing regulations for Section
                                               to any historic property listed in, or                  to make determinations concerning                     106 of the National Historic
                                               eligible for listing in, the National                   remains and artifacts discovered during               Preservation Act.
                                               Register of Historic Places, including                  construction activities. This commenter                  The proposed general condition is
                                               previously unidentified properties. A                   said that this general condition should               similar to general condition 3 in
                                               pre-construction notification is the                    require all work to cease immediately                 Appendix A of 33 CFR part 325. For this
                                               appropriate mechanism to notify the                     and a qualified Corps archaeologist                   new NWP general condition, we have
                                               district engineer, because it contains                  should initiate required consultation.                taken the text of general condition 3 in
                                               information necessary to begin the                         We believe the revised language in the             Appendix A and modified it to include
                                               evaluation process, to determine                        condition clearly indicates that the                  Tribes. We have also modified it by
                                               whether the proposed activity qualifies                 Corps will initiate consultation in such              adding a provision requiring, to the
                                               for NWP authorization.                                  instances where a previously unknown                  maximum extent practicable, avoidance
                                                  One commenter requested                              historic or archaeological remain is                  of construction activities that could
                                               clarification of what constitutes the                   discovered during construction                        affect the remains and artifacts. We
                                               permit area for the purposes of                         activities. The Corps does not have the               believe the latter provision is necessary
                                               consultation under Section 106 of the                   authority to prohibit all construction                to protect those artifacts and remains as
                                               National Historic Preservation Act. One                 activities on the site in these cases.                much as possible. The addition of
                                               commenter asked if a permittee is                          Several commenters expressed                       Tribes to the condition reflects current
                                               obligated to have the Corps review an                   concern with the use of the term                      section 106 procedures. This general
                                               archaeologist’s determination that an                   ‘‘artifact’’ in this general condition, and           condition can be more restrictive than
                                               activity will not impact an historic site.              some of them stated that it can have too              the standard permit condition in
                                               One commenter stated that the general                   broad of a definition. One commenter                  Appendix A because the NWPs may
                                               condition is unreasonable and violates                  requested clarification as to what                    only be used to authorize activities with
                                               federalism.                                             constitutes an ‘‘artifact.’’ Another                  minimal adverse effects on the aquatic
                                                  The criteria for identifying the permit              commenter said that this general                      environment and other applicable
                                               area for the purposes of section 106 are                condition should have thresholds to                   public interest review factors. While 33
                                               provided in paragraph 1(g) of Appendix                  protect significant artifact deposits                 CFR 330.4(g)(3) contains a similar
                                               C to 33 CFR part 325, in addition to                    while allowing work to continue when                  provision, we believe the general
                                               paragraph 6(d) of the April 25, 2005,                   only minor artifacts are discovered. One              condition is needed to comply with
                                               interim guidance. The permit area will                  commenter suggested that we qualify                   applicable cultural resource laws.
                                               be determined on a case-by-case basis                   ‘‘artifacts’’ by adding ‘‘artifacts that are             Several commenters expressed
                                               by the district engineer. When a                        potentially eligible for the National                 concern with requiring the permittee to
                                               professional cultural resource manager                  Register of Historic Places.’’                        stop work once previously unknown
                                               or archaeologist performs an                               The use of the term artifact is                    historic or archaeological remains are
                                               investigation or makes an effect                        consistent with the definition of                     found. One commenter said this
                                               determination, the Corps will generally                 ‘‘historic property’’ at 36 CFR 800.16,               provision is too unpredictable and may
                                               consider the qualifications of the                      which states that historic properties                 result in significant delays. One
                                               professional and will review any                        include ‘‘ * * * artifacts, records, and              commenter suggested adding time
                                               documentation provided for the                          remains that are related to and located               frames to this general condition to
                                               purposes of section 106 compliance.                     within [historic] properties.’’ Procedures            provide predictability and assure
                                               This general condition is required                      for the protection of historic properties             permittees that the Corps will
                                               because the NWP program must comply                     address all properties that may be                    proactively seek to resolve any
                                               with the National Historic Preservation                 eligible for inclusion in the National                outstanding historic property issues.
                                               Act, a Federal law. Even though most                    Register of Historic Places, and do not               One commenter recommended
                                               NWP activities occur on private land,                   establish quantitative thresholds for                 clarifying this general condition to state
                                               compliance with applicable Federal                      when section 106 consultation must                    that if a discovery occurs, work should
                                               laws is necessary. This general                         occur. The consultation threshold is an               cease only in the area containing
                                               condition would not interfere with any                  effects-based threshold. We do not                    remains or artifacts. One commenter
                                               state or local authorities.                             believe it is necessary to add text                   objected to the work stoppage provision,
                                                  This general condition is adopted                    clarifying that artifacts are those ‘‘that            stating that once construction begins,
                                               with the modifications discussed above.                 are potentially eligible for the National             substantial investment has been made
                                                  GC 21. Discovery of Previously                       Register of Historic Places.’’ Eligibility            and the requirement to stop
                                               Unknown Remains and Artifacts. We                       determinations will be made after the                 construction indefinitely upon the
                                               proposed this new general condition to                  discovery of artifacts and remains.                   discovery of a potentially insignificant
                                               address circumstances where previously                     Three commenters stated that the                   archaeological resource represents an
                                               unknown or unidentified historical or                   proposed general condition is more                    unacceptable financial risk. This
                                               archaeological remains are discovered                   restrictive than general condition 3                  commenter recommended that if we
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                                               while conducting the NWP activity.                      provided in Appendix A to 33 CFR part                 keep this provision as proposed, we
                                                  Several commenters expressed                         325, the permit form for individual                   impose time frames on identification
                                               support for adding this general                         permits. These commenters said the                    and consultation in order to provide
                                               condition to the NWPs. Two                              NWP general condition should not be                   some predictability to the process.
                                               commenters said the condition should                    more restrictive than the standard                       We believe it is necessary to include
                                               refer to the district engineer instead of               permit condition. Two commenters                      a provision in this general condition to
                                               ‘‘this office’’ or ‘‘we.’’ We have made                 suggested deleting this general                       require the permittee, once any


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                                               10252                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               previously unknown historic, cultural,                  agency know if any further action by the              designate additional waters as critical
                                               or archeological remains or artifacts are               Corps is necessary.                                   resource waters without the district
                                               found while conducting the NWP                             This general condition is adopted                  engineer providing an opportunity for
                                               activity, to avoid construction activities              with the modifications discussed above.               public notice and comment. We are
                                               that could affect those remains and                        GC 22. Designated Critical Resource                modifying this general condition to
                                               artifacts, to the maximum extent                        Waters. We proposed to modify this                    return to our original approach, since
                                               practicable. We recognize that in some                  general condition to clarify the types of             there is much disparity across the
                                               circumstances it may not be possible to                 waters subject to the general condition               country in how outstanding national
                                               avoid further construction activities that              by changing how NOAA’s marine                         resource waters are identified and
                                               might affect the remains and artifacts,                 sanctuaries are described, which                      designated. Because of the
                                               because those construction activities                   categories of critical resource waters are            inconsistency in how outstanding
                                               may have to be completed for safety or                  always subject to this general condition,             national resource waters are designated,
                                               minimizing erosion and sedimentation.                   and how additional critical resource                  we believe it is necessary to provide the
                                               In addition, the Corps does not have the                waters can be designated by a district                public with the opportunity to review
                                               legal authority to stop construction                    engineer after a public notice and                    and comment on those waters before
                                               activities. We have replaced the phrase                 comment process. We also proposed to                  they become adopted as designated
                                               ‘‘stop activities that would adversely                  add proposed new NWPs A and B, now                    critical resource waters for the purposes
                                               affect those’’ with ‘‘avoid construction                designated NWPs 51 and 52,                            of this general condition. Outstanding
                                               activities that could affect the’’ to                   respectively, to the list of NWPs in                  national resource waters should have
                                               protect those remains and artifacts as                  paragraph (a).                                        environmental and ecological
                                               much as possible while preventing other                    Several commenters objected to                     significance, and their designation
                                               adverse environmental effects from                      allowing state-designated outstanding                 should not be based solely on
                                               occurring, such as the installation of                  national resource waters to be                        recreational uses or characteristics.
                                               sediment and erosion control devices to                 automatically included as designated                     Three commenters expressed concern
                                               reduce or eliminate sediment inputs to                  critical resource waters because of                   that providing district engineers the
                                               wetlands, streams, and other waters                     varying designations and criteria across              ability to designate, after notice and
                                               while the necessary Federal, Tribal, and                the states. These commenters also said                opportunity to comment, additional
                                               state coordination is conducted. It                     that a state’s process to designate such              waters officially designated by a state as
                                               would not be appropriate to impose                      waters may not include the opportunity                having particular environmental or
                                               timeframes in this general condition,                   for public comment and that the                       ecological significance would lead large
                                               because the amount of time to complete                  designations carry no legal basis. In                 areas of state-designated waters of all
                                               coordination will vary across the                       addition, commenters indicated there                  types to be removed from being eligible
                                               country and from case to case. We                       are inconsistent approaches by different              for the NWPs. One commenter said this
                                               cannot remove the provision for                         agencies within the same state for                    general condition should be removed
                                               avoiding construction activities that                   designating outstanding national                      because it violates the principles of
                                               could affect the remains and artifacts,                 resource waters. Some commenters said                 federalism in Executive Order 13132.
                                               because Section 106 of the National                     that other state programs, such as those              This commenter said a district engineer
                                               Historic Preservation Act and other                     that are responsible for Clean Water Act              could use state stream designations to
                                               cultural resource laws impose binding                   Section 401 water quality certifications,             identify critical resource waters and
                                               requirements on the Corps and other                     are capable of adequately addressing the              override the rights of states to interpret
                                               federal agencies.                                       effects of the activity to these state                and enforce their own laws.
                                                  A few commenters said this general                   designated waters. One commenter                         We are retaining the provision that
                                               condition should not apply to other                     requested a definition of outstanding                 allows district engineers to designate
                                               Federal agencies with section 106                       national resource waters. Two                         additional critical resource waters after
                                               responsibilities if they are the                        commenters said such waters should                    notice and opportunity for public
                                               permittees, since their implementing                    have a particular environmental or                    comment. That process is not
                                               regulations already contain provisions                  ecological significance. Two                          substantially different from using the
                                               for the discovery of previously                         commenters objected to including                      regional conditioning process to restrict
                                               unknown historic or archaeological                      outstanding national resource waters                  or prohibit the use of NWPs in specific
                                               remains during construction.                            automatically because that designation                waters or geographic areas, which can
                                                  We agree that in cases where another                 may be based only on recreational                     be delegated by division engineers to
                                               federal agency is the lead Federal                      characteristics. Three commenters                     district engineers. This general
                                               agency for purposes of compliance with                  suggested that the general condition                  condition is not contrary to Executive
                                               Section 106 of the National Historic                    should be changed to require the district             Order 13132. The general condition
                                               Preservation Act, that Federal agency                   engineer to designate such waters only                helps support the objective of the Clean
                                               should follow its procedures for                        after issuing a public notice and                     Water Act, which is to restore and
                                               addressing post-review discoveries.                     soliciting comment, and then obtaining                maintain the physical, chemical, and
                                               However, the Corps also has section 106                 concurrence from the state.                           biological integrity of the Nation’s
                                               responsibilities if the NWP activity has                   This general condition was first                   waters. In addition, this general
                                               the potential to cause effects to an                    adopted in the NWPs issued on March                   condition helps ensure that the NWPs
                                               historic property. As long as the lead                  9, 2000 (see 65 FR 12872). In the                     authorize only those activities that have
                                               Federal agency is in compliance with                    preamble to the 2000 NWPs, we stated                  minimal individual and cumulative
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                                               section 106 requirements and this                       that ‘‘ * * * outstanding national                    adverse effects on the aquatic
                                               compliance satisfies section 106                        resource waters must be identified and                environment. This general condition
                                               requirements for the NWP                                approved by the district engineer after               only applies to waters and wetlands that
                                               authorization, the Corps can rely on the                public notice and opportunity for                     are both waters of the United States and
                                               lead Federal agency’s compliance                        comment’’ (65 FR 12873, third column).                designated critical resource waters.
                                               efforts. Upon notification, the district                In that notice, we also said that state or               One commenter objected to removing
                                               engineer will let the other Federal                     local officials should not be able to                 state natural heritage sites from


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                                               automatic inclusion in the general                      result in minimal adverse effects on                  environment, including the critical
                                               condition due to their interest in                      designated critical resource waters and               resource water and its adjacent
                                               maintaining the existing protection the                 adjacent wetlands.                                    wetlands. Agency coordination is only
                                               general condition provides to areas of                     The purpose of the prohibition in                  required for NWP activities that result
                                               unique ecological significance. Another                 paragraph (a) of this general condition is            in the loss of greater than 1⁄2-acre of
                                               commenter supported the proposed                        to exclude the use of those NWPs in                   waters of the United States. None of the
                                               change. One commenter said state                        critical resource waters that have the                NWPs listed in paragraph (b) have the
                                               natural heritage sites should not be                    potential to result in more than minimal              300 linear foot limit for the loss of
                                               automatically considered critical                       adverse effects on the aquatic                        stream beds, so the agency coordination
                                               resource waters because the term is                     environment. The status of the entity                 threshold for requests for written
                                               undefined. Another commenter                            who would be conducting the proposed                  waivers for the loss of greater than 300
                                               suggested that state natural heritage                   discharge of dredged or fill material is              linear feet of intermittent or ephemeral
                                               sites should be limited to those sites                  not relevant to the minimal adverse                   stream bed would not be triggered. We
                                               that are identified through state                       effects determination; instead, it is the             do not agree that conservation areas
                                               legislation. One commenter opposed                      environmental effects of the discharge                should be added to the general
                                               including state natural heritage sites as               that have to be considered. Discharges                condition at the national level, because
                                               potentially being classified as critical                of dredged or fill material into waters of            what constitutes a ‘‘conservation area’’
                                               resource waters and suggested that the                  the United States that are designated                 is likely to vary across the country.
                                               Corps continue to defer to State                        critical resource waters, as well as their            District engineers may add specific
                                               Historical Preservation Officers to                     adjacent wetlands, may be authorized                  aquatic conservation areas that meet the
                                               determine effects on historic sites.                    by other forms of Department of the                   definition of critical resource waters to
                                                  While we understand the perspective                  Army permits, such as individual                      this general condition after a public
                                               that state natural heritage sites should                permits or regional general permits.                  notice and comment process.
                                               be automatically subject to this general                Wild and Scenic Rivers referenced in                     The general condition is adopted as
                                               condition, we also understand the need                  general condition 16 are those waters                 proposed.
                                               for transparency and clarity for the                    that have been designated as such in                     GC 23. Mitigation. We proposed to
                                               regulated public. Given the variability                 accordance with the Wild and Scenic                   modify paragraph (g) to be more
                                               in waters and wetlands that may be                      Rivers Act of 1968, a federal law.                    consistent with the compensatory
                                               designated as state natural heritage sites,             Similar to state-listed threatened and                mitigation regulations at 33 CFR part
                                               and the different processes that may be                 endangered species, the NWP program                   332, by replacing the word
                                               used by states to designate their natural               cannot be used to ensure compliance                   ‘‘arrangements’’ with ‘‘programs’’ in
                                               heritage sites, we believe it is necessary              with other state or local laws. However,              describing in-lieu fee programs and
                                               to provide a public notice and comment                  an NWP authorization does not obviate                 replacing the phrase ‘‘activity-specific’’
                                               process before including state natural                  the need for the permittee to obtain                  with ‘‘permittee-responsible’’ when
                                               heritage sites as designated critical                   other federal, state, or local                        referring to compensatory mitigation
                                               resource waters under this general                      authorizations, including specific                    implemented by the permittee. In
                                               condition. This approach will help                      authorizations related to state-protected             addition, we proposed to add a
                                               improve compliance with the NWP                         critical resource waters. The water                   provision stating that for activities
                                               conditions, because it will make project                quality certification process would not               resulting in the loss of marine or
                                               proponents aware of certain restrictions                be an appropriate alternative to the pre-             estuarine resources, permittee-
                                               for the use of specific NWPs. The                       construction notification requirement in              responsible compensatory mitigation
                                               protection of historic properties is more               paragraph (b) of this general condition               may be environmentally preferable if
                                               appropriately addressed through general                 because the evaluation of an NWP pre-                 there are no mitigation banks or in-lieu
                                               condition 20, historic properties.                      construction notification involves                    fee programs in the area that have
                                                  One commenter said the use of an                     consideration of more than water                      marine or estuarine credits available for
                                               NWP should not be prohibited in                         quality issues.                                       sale or transfer to the permittee. Finally,
                                               critical resource waters when the agency                   One commenter suggested that pre-                  we proposed to revise the last sentence
                                               responsible for managing those critical                 construction notifications for NWP                    of paragraph (g) to state that the party
                                               resource waters is conducting the                       activities listed in paragraph (b)                    responsible for providing the required
                                               activity. This commenter also suggested                 proposed in waters identified as critical             permittee-responsible mitigation,
                                               that the general condition should not                   resources through state processes,                    including any required long-term
                                               prohibit the use of NWPs, but instead                   should only be coordinated with state                 management, is to be identified in
                                               the NWPs listed in paragraph (a) should                 authorities. This commenter said the                  conditions added to the NWP
                                               be moved to the notification provision                  pre-construction notification for simple              authorization. Several commenters
                                               of paragraph (b) and also require the                   maintenance and improvement projects                  supported these proposed changes. One
                                               approval of the agency that manages the                 creates unnecessary work for the project              commenter commended the Corps for
                                               designated critical resource water,                     proponent and the Corps. One                          the flexibility in determining
                                               similar to the approach taking in general               commenter recommended adding a list                   compensatory mitigation requirements.
                                               condition 16, wild and scenic rivers.                   of conservation areas to the general                     One commenter stated that paragraph
                                               One commenter supported protecting                      condition, with a requirement that                    (a) should indicate that when another
                                               critical resource waters but suggested                  permittees must be in compliance with                 Federal agency has determined that the
                                               that protection can be provided instead                 the site specific management plan of the              activity has been designed to avoid and
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                                               by requiring prior written approval                     conservation area.                                    minimize impacts the district engineer
                                               through a state’s water quality agency.                    The district engineer will evaluate the            will defer to that agency’s
                                               Another recommended requiring water                     pre-construction notification for an                  determination. Several commenters said
                                               quality certifications for the NWPs                     NWP listed in paragraph (b) of this                   this general condition does not
                                               listed in paragraph (b) instead of pre-                 general condition, to determine if the                adequately stress avoidance of aquatic
                                               construction notifications, to ensure that              proposed activity will result in minimal              resources before compensatory
                                               the activities authorized by those NWPs                 adverse effects on the aquatic                        mitigation is considered. One


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                                               10254                        Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices

                                               commenter also said the general                         230.10(a) are not directly applicable to              mitigation, including permittee-
                                               condition should refer to the measures                  general permits.                                      responsible mitigation, mitigation
                                               provided in the 404(b)(1) Guidelines for                  One commenter stated the general                    banks, and in-lieu fee programs. As
                                               details on avoiding and minimizing                      condition should address other aspects                stated in 33 CFR 332.1(b), the 2008 rule
                                               impacts. This commenter also suggested                  of mitigation, such as performance                    does not change the circumstances
                                               that the prospective permittee should be                standards, monitoring, and contingency                under which compensatory mitigation is
                                               required to document the steps taken to                 actions. One commenter said the general               required. The NWP regulations at 33
                                               avoid and minimize impacts, and                         condition does not comply with 33 CFR                 CFR 330.1(e)(3) stipulate when
                                               describe them in the pre-construction                   part 332 because it does not provide any              compensatory mitigation is to be
                                               notification. In addition, the commenter                criteria or performance standards for                 required for NWP activities—that is,
                                               said that the NWPs should only                          compensatory mitigation. One                          when the district engineer determines
                                               authorize discharges of dredged or fill                 commenter indicated that monitoring                   the individual and cumulative adverse
                                               material into special aquatic sites when                must be required for all mitigation.                  environmental effects are more than
                                               the activity is water dependent or in                     We have made several changes to this                minimal. The requirements at 33 CFR
                                               cases where the prospective permittee                   general condition to make it consistent               part 332 may affect the practicability of
                                               clearly demonstrates there are no                       with the applicable provisions in 33                  providing compensatory mitigation for
                                               practicable alternatives available. One                 CFR part 332. We have also added a                    all NWP activities that result in the loss
                                               commenter stated that the practicable                   sentence to paragraph (c)(1) of this                  of 1⁄10-acre to 1⁄2-acre and require pre-
                                               alternative test in the Section 404(b)(1)               general condition to state that                       construction notification, especially if
                                               Guidelines should be used for NWP                       compensatory mitigation projects to                   the NWP activity is not in the service
                                               activities.                                             offset losses of aquatic resources must               area of an approved mitigation bank or
                                                                                                       comply with the applicable provisions                 in-lieu fee program with released or
                                                  The district engineer determines                     of 33 CFR part 332. The general
                                               compliance with the terms and                                                                                 advance credits available at the time the
                                                                                                       condition provides basic requirements,                NWP pre-construction notification is
                                               conditions of the NWPs, including                       since the specific details for
                                               whether the permittee has avoided and                                                                         being evaluated by the district engineer.
                                                                                                       compensatory mitigation projects (e.g.,                  In the 2008 mitigation rule, we also
                                               minimized adverse effects to waters of                  objectives, ecological performance                    discussed our concerns about the failure
                                               the United States to the maximum                        standards, monitoring requirements,                   rates of on-site compensatory
                                               extent practicable on the project site.                 and site protection) are determined on                mitigation, which are often not
                                               The general condition imposes                           a case-by-case basis by district                      ecologically successful because of
                                               substantive requirements to avoid and                   engineers. We acknowledge that                        nearby changes in land use (see 73 FR
                                               minimize adverse effects to waters of                   monitoring is required for all                        19601). We believe it would be
                                               the United States, and district engineers               compensatory mitigation projects, in                  inappropriate to require users of the
                                               will review pre-construction                            accordance with 33 CFR 332.6.                         NWP to provide small on-site
                                               notifications and determine whether                       Two commenters stated that the                      compensatory mitigation projects to
                                               project proponents have satisfied the                   district engineer should have discretion              offset losses caused by NWP activities if
                                               avoidance and minimization                              to determine what, if any, compensatory               they are likely to fail. If the district
                                               requirement, as well as other applicable                mitigation is required for projects                   engineer determines that on-site
                                               provisions of this general condition.                   impacting more than 1⁄10-acre of                      mitigation is likely to be ecologically
                                               District engineers will also determine if               wetlands, as in some cases,                           successful, he or she may require that
                                               proposed activities result in minimal                   compensatory mitigation may not be                    compensatory mitigation. It may not be
                                               adverse effects on the aquatic                          necessary, and mitigation ratios of less              practicable to provide off-site
                                               environment and qualify for NWP                         than one-for-one may be adequate. One                 compensatory mitigation if the activity
                                               authorization. General permits only                     commenter said that the Corps cannot                  is not in the service area of an approved
                                               need to comply with section 230.7 of                    require mitigation for NWP activities                 mitigation bank or in-lieu fee program
                                               the 404(b)(1) Guidelines, which                         that result in minimal adverse                        with available credits. It is also
                                               provides the evaluation process for the                 environmental effects, even if there are              important to recognize that not all areas
                                               issuance of Clean Water Act Section 404                 wetland losses greater than 1⁄10-acre, and            of the country have approved mitigation
                                               general permits, including NWPs.                        requested that the Corps change the first             banks or in-lieu fee programs. If the
                                               Individual activities that qualify for                  sentence of paragraph (c) to state that               district engineer determines that
                                               NWP authorization do not have to                        the mitigation requirement can be                     compensatory mitigation is necessary to
                                               implement the avoidance and                             waived if the district engineer                       ensure than an NWP activity results in
                                               minimization measures provided                          determines that the impacts of the                    minimal individual and cumulative
                                               elsewhere in the 404(b)(1) Guidelines,                  proposed activity are minimal or some                 adverse effects on the aquatic
                                               although they must still comply with                    other form of mitigation would be more                environment, and there are no
                                               the avoidance and minimization                          environmentally appropriate. Several                  practicable and ecologically successful
                                               provisions of this general condition,                   commenters stated that compensatory                   compensatory mitigation options
                                               which are designed to ensure that the                   mitigation should be required for all                 available, then he or she will exercise
                                               NWPs collectively comply with the                       NWP activities, and all resource types,               discretionary authority and notify the
                                               404(b)(1) Guidelines. Requiring the                     regardless of the amount of impact.                   project proponent that another form of
                                               permittee to provide documentation of                     The 2008 compensatory mitigation                    Department of the Army authorization is
                                               avoidance and minimization measures                     rule (33 CFR part 332, as published in                required, such as an individual permit.
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                                               taken would result in unnecessary                       the April 10, 2008, edition of the                       To be consistent with 33 CFR
                                               paperwork requirements, and the                         Federal Register (73 FR 19594))                       330.1(e)(3), and to take into account
                                               current information requirements for                    established standards and criteria for all            how the requirements of 33 CFR part
                                               complete pre-construction notifications                 compensatory mitigation projects                      332 affect the practicability for
                                               are sufficient. Section 230.7(b)(1) of the              required to offset losses of aquatic                  providing compensatory mitigation for
                                               404(b)(1) Guidelines states that the                    resources. The standards and criteria                 small wetland losses, we have modified
                                               alternatives analyses required by section               apply to all sources of compensatory                  paragraph (c) of this general condition


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                                                                            Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices                                          10255

                                               to state that the district engineer will                stream bed should be required for a                      The party responsible for providing
                                               evaluate the pre-construction                           particular NWP activity. We do not                    the compensatory mitigation must
                                               notification and may not require                        agree that losses of stream bed should                implement the approved mitigation
                                               compensatory mitigation for losses of                   have a threshold for determining when                 plan, and if it is determined that
                                               greater than 1⁄10-acre of wetlands if he or             compensatory mitigation should be                     changes are needed to improve
                                               she determines that either alternative                  required for those losses. We have                    ecological success, request approval of
                                               mitigation (such as additional avoidance                modified paragraph (d) of this general                those modifications. After the approved
                                               and minimization of impacts to waters                   condition by replacing the word                       compensatory mitigation project is
                                               of the United States on the project site)               ‘‘restoration’’ with ‘‘rehabilitation,                implemented, monitoring is required on
                                               would ensure that the NWP activity                      enhancement, or preservation’’ to be                  a regular basis and monitoring reports
                                               results in minimal individual and                       consistent with 33 CFR 332.3(e)(3),                   must be submitted to the district
                                               cumulative adverse effects on the                       which recognizes streams as ‘‘difficult-              engineer. The monitoring reports are
                                               aquatic environment, or the impacts of                  to-replace’’ resources.                               reviewed by the district engineer and if
                                               the proposed activity are minimal                          Out-of-kind mitigation does not                    there are deficiencies in the
                                               without compensatory mitigation and                     contradict the ‘‘no overall net loss’’ goal           compensatory mitigation project, the
                                               determines the compensatory mitigation                  for wetlands, since out-of-kind wetlands              district engineer will work with the
                                               would not be required. We do not agree                  m