Issuance of Nationwide Permits Notice by EPADocs

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									                                                                                                                                Monday,
                                                                                                                                March 12, 2007




                                                                                                                                Part II

                                                                                                                                Department of
                                                                                                                                Defense
                                                                                                                                Department of the Army, Corps of
                                                                                                                                Engineers

                                                                                                                                Reissuance of Nationwide Permits; Notice
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                                          11092                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          DEPARTMENT OF DEFENSE                                   administration, and strengthen                        coastal zone that will affect land or
                                                                                                  environmental protection. These                       water uses or natural resources of that
                                          Department of the Army, Corps of                        changes are discussed in the preamble.                state’s coastal zone, is contingent upon
                                          Engineers                                                  The Corps is reissuing the 43 existing             obtaining an individual CZMA
                                                                                                  NWPs, issuing six new NWPs, reissuing                 consistency determination, or a case-
                                          [ZRIN 0710–ZA02]
                                                                                                  26 existing general conditions, and                   specific presumption of CZMA
                                          Reissuance of Nationwide Permits                        issuing one new general condition. The                concurrence. We are taking this
                                                                                                  Corps is also reissuing many of the NWP               approach to reduce the hardships on the
                                          AGENCY:    Army Corps of Engineers, DoD.                definitions, and providing 13 new                     regulated public that would be caused
                                          ACTION:   Final notice.                                 definitions. The effective date for these             by a substantial gap in NWP coverage if
                                                                                                  NWPs, general conditions, and                         we were to wait 60 days before these
                                          SUMMARY: The U.S. Army Corps of                         definitions is March 19, 2007. These                  NWPs would become effective.
                                          Engineers (Corps) is reissuing all                      NWPs, general conditions, and                            After the 60-day period, the latest
                                          existing nationwide permits (NWPs),                     definitions expire on March 18, 2012.                 version of any written position take by
                                          general conditions, and definitions,                       While the Administrative Procedure                 a state, Indian tribe, or EPA on its WQC
                                          with some modifications. The Corps is                   Act requires a substantive rule to be                 for any of the NWPs will be accepted as
                                          also issuing six new NWPs, two new                      published in the Federal Register at                  the state’s final position on those NWPs.
                                          general conditions, and 13 new                          least 30 days before its effective date,              If the state, Indian tribe, or EPA takes no
                                          definitions. The effective date for the                 exceptions to this requirement can be                 action by May 11, 2007, WQC will be
                                          new and reissued NWPs will be March                     made for good cause (5 U.S.C.                         considered waived for those NWPs.
                                          19, 2007. These NWPs will expire on                     553(d)(3)). We are utilizing this good                   After the 60-day period, the latest
                                          March 18, 2012. The NWPs will protect                   cause exception to reduce hardships on                version of any written position take by
                                          the aquatic environment and the public                  the regulated public.                                 a state on its CZMA consistency
                                          interest while effectively authorizing                                                                        determination for any of the NWPs will
                                          activities that have minimal individual                 Grandfather Provision for Expiring                    be accepted as the state’s final position
                                          and cumulative adverse effects on the                   NWPs                                                  on those NWPs. If the state takes no
                                          aquatic environment.                                      In accordance with 33 CFR 330.6(b),                 action by May 11, 2007, CZMA
                                          DATES: The NWPs and general                             activities authorized by the current                  concurrence will be presumed for those
                                          conditions will become effective on                     NWPs issued on January 15, 2002, that                 NWPs.
                                          March 19, 2007.                                         have commenced or are under contract
                                                                                                                                                        Discussion of Public Comments
                                          ADDRESSES: U.S. Army Corps of                           to commence by March 18, 2007, will
                                          Engineers, Attn: CECW–CO, 441 G                         have until March 18, 2008, to complete                I. Overview
                                          Street NW., Washington, DC 20314–                       the activity under the terms and                         In response to the September 26,
                                          1000.                                                   conditions of the current NWPs.                       2006, Federal Register notice, we
                                                                                                  Clean Water Act Section 401 Water                     received more than 22,500 comments.
                                          FOR FURTHER INFORMATION CONTACT:   Mr.
                                                                                                  Quality Certifications (WQC) and                      We reviewed and fully considered all
                                          David Olson at 202–761–4922 or by e-
                                                                                                  Coastal Zone Management Act (CZMA)                    comments received in response to that
                                          mail at david.b.olson@usace.army.mil or
                                                                                                  Consistency Determinations                            notice.
                                          access the U.S. Army Corps of Engineers
                                          Regulatory Home Page at http://                            In the September 26, 2006, Federal                 General Comments
                                          www.usace.army.mil/inet/functions/cw/                   Register notice and concurrent with                     Many commenters provided general
                                          cecwo/reg/.                                             letters from Corps Districts to the                   support for the proposal, and some of
                                          SUPPLEMENTARY INFORMATION:                              appropriate state agencies, the Corps                 them stated that the changes are a step
                                                                                                  requested initial 401 certifications and              forward in improving consistency in the
                                          Background
                                                                                                  CZM consistency determinations. This                  NWP program. Some commenters said
                                             In the September 26, 2006, issue of                  began the Clean Water Act section 401                 that the proposed NWPs provide a
                                          the Federal Register (71 FR 56258), the                 water quality certification (WQC) and                 balance between environmental
                                          U.S. Army Corps of Engineers (Corps)                    Coastal Zone Management Act (CZMA)                    protection and allowing development to
                                          published its proposal to reissue 43                    consistency determination processes.                  occur. One commenter said that the
                                          existing nationwide permits (NWPs) and                     Today’s Federal Register notice                    NWP program provides sufficient
                                          issue six new NWPs. The Corps also                      begins the 60-day period for states,                  environmental protection, through its
                                          proposed to reissue its general                         Indian Tribes, and EPA to complete                    general conditions and the ability for
                                          conditions and add one new general                      their WQC process for the NWPs. This                  the district engineer to exercise
                                          condition.                                              Federal Register notice also provides a               discretionary authority to require
                                             The Corps proposal is intended to                    60-day period for coastal states to                   individual permits. Several commenters
                                          simplify the NWP program while                          complete their CZMA consistency                       stated that the proposed NWPs are
                                          continuing to provide environmental                     determination processes. This 60-day                  simpler, clearer, and easier to
                                          protection, by ensuring that the NWPs                   period will end on May 11, 2007.                      understand. Three commenters said that
                                          authorize only those activities that have                  While the states, Indian Tribes, and               further streamlining is necessary. One
                                          minimal individual and cumulative                       EPA complete their WQC processes and                  commenter recommended adopting a
                                          adverse effects on the aquatic                          the states complete their CZMA                        standard numbering system for
                                          environment and satisfy other public                    consistency determination processes,                  paragraphs and subparagraphs within
                                          interest factors.                                       the use of an NWP to authorize a                      the NWP text. Three commenters said
                                             As a result of the comments received                 discharge into waters of the United                   that the Corps should retain appropriate
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                                          in response to the September 26, 2006,                  States is contingent upon obtaining                   references to general conditions in the
                                          proposal, we have made a number of                      individual water quality certification or             text of NWPs, for purpose of
                                          changes to the NWPs, general                            a case-specific WQC waiver. Likewise,                 clarification.
                                          conditions, and definitions to further                  the use of an NWP to authorize an                       To the extent that it is feasible, we
                                          clarify the permits, facilitate their                   activity within, or outside, a state’s                have adopted a standard format for the


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11093

                                          NWPs. Some NWPs require different                       notifications should be posted on the                 activities that result in minimal adverse
                                          formats, to make them easier to read and                Internet for a public comment period.                 effects on the aquatic environment.
                                          provide further clarification. For the                  The review of pre-construction                        Compliance with the National
                                          most part, it is not necessary to retain                notifications by district engineers is                Environmental Policy Act and the
                                          references to general conditions in the                 sufficient for effective environmental                Section 404(b)(1) Guidelines is
                                          text of the NWPs, except for general                    protection. Some NWP activities require               accomplished through decision
                                          condition 27, Pre-Construction                          coordination with other Federal and/or                documents prepared by the Corps.
                                          Notification, because most general                      State agencies, which provides a                      These decision documents contain
                                          conditions apply to all NWPs.                           supplemental level of environmental                   findings that the NWPs result in
                                             In contrast, a few commenters said                   protection. The activities authorized by              minimal adverse effects, and are based
                                          that the proposed NWPs are not simpler                  NWPs have minimal adverse effects and                 on available data at the national scale.
                                          and clearer. Three commenters declared                  are limited, within each permit, to                   Division engineers issue supplemental
                                          that the proposed NWPs are more like                    narrowly defined categories of similar                decision documents for use of NWPs
                                          individual permits than general permits.                activities. Notice and opportunity for                within Corps district boundaries.
                                          A number of commenters asserted that                    public comment on the authorization of                   Several commenters said that the
                                          the proposed NWPs will significantly                    these activities through NWPs is                      NWPs do not protect small wetlands
                                          increase costs and delays for permit                    provided as part of the NWP                           and waterbodies enough, and one
                                          applicants. Four commenters said that                   promulgation process. The Corps                       commenter said that the proposed
                                          the attempt at clarification and                        believes this is the appropriate level of             permits do not support the ‘‘no overall
                                          simplicity will reduce the flexibility of               public notice and comment for these                   net loss’’ goal for wetlands. In contrast,
                                          the NWP program.                                        types of activities. Further, when                    one commenter stated that the proposal
                                             The NWPs issued today are not                        reviewing pre-construction                            provides adequate protection to the
                                          similar to individual permits. The                      notifications, district engineers will                environment and supports the ‘‘no
                                          NWPs provide a streamlined form of                      exercise discretionary authority to                   overall net loss’’ of wetlands goal.
                                          Department of the Army authorization                    require individual permits for those                     The NWPs protect all jurisdictional
                                          for those activities that result in                     activities that they determine may result             waters, including small wetlands and
                                          minimal individual and cumulative                       in more than minimal adverse effects on               other waterbodies, through their terms
                                          adverse effects on the aquatic                          the aquatic environment or do not                     and conditions, such as acreage limits
                                          environment and satisfy other public                    satisfy other public interest review                  and linear foot limits. The NWPs also
                                          interest review factors. In 2003, the                   factors, and thus warrant a more                      support the ‘‘no overall net loss goal’’
                                          average processing time for NWPs was                    thorough individual review through a                  through mitigation requirements,
                                          27 days and for individual permits it                   public notice and comment process.                    including aquatic resource restoration,
                                          was 144 days. In response to comments                      Some commenters stated that the                    establishment, enhancement, and
                                          received as a result of the September 26,               NWPs should require consideration of                  preservation activities that may be
                                          2006, Federal Register notice, we have                  less damaging alternatives, and others                required as compensatory mitigation. As
                                          modified some of the proposed NWPs to                   said that the Corps did not provide                   noted above, general condition 20,
                                          address provisions that could have                      sufficient scientific justification for               Mitigation, also includes requirements
                                          unnecessary negative effects on                         proposed changes to the NWPs, or                      for on-site avoidance and minimization.
                                          regulatory efficiency and environmental                 demonstrate that NWP activities result                   Two commenters objected to allowing
                                          protection.                                             in minimal adverse environmental                      district engineers to issue waivers that
                                             Other commenters expressed general                   effects. One commenter said that there                allow permittees to exceed the limits of
                                          opposition to the proposal, and said that               is not sufficient emphasis on avoidance               NWPs, stating that such waivers do not
                                          the proposal weakens protection for                     of impacts to waters of the United                    support the minimal adverse effects
                                          waters and should be withdrawn. Many                    States. Another commenter objected to                 requirement. Two commenters said that
                                          of these commenters objected to the                     using NWPs to expand existing projects,               the NWPs authorize unlimited impacts
                                          goals of ‘‘streamlining’’ or ‘‘improving                stating that it discourages avoidance and             to waters of the United States. One
                                          regulatory efficiency,’’ stating that the               minimization.                                         commenter remarked that acreage limits
                                          focus of the NWPs should be on                             The NWPs authorize only those                      should be consistent for all NWPs. One
                                          compliance with the Clean Water Act.                    activities that result in minimal                     commenter stated that the acreage limits
                                          Some commenters expressed opposition                    individual and cumulative adverse                     in the proposed NWPs are sufficient to
                                          to the issuance of the NWPs, and said                   effects on the aquatic environment, and               ensure minimal adverse effects. Three
                                          that activities proposed for NWP                        thus do not include a formal process for              commenters asserted that the acreage
                                          authorization should be individually                    consideration of less damaging                        limits of the proposed NWPs are too
                                          subjected to a public notice and                        alternatives. General condition 20,                   low, and they reduce the effectiveness
                                          comment process. One commenter                          Mitigation, requires permittees to avoid              of the NWP program. One commenter
                                          suggested that pre-construction                         and minimize adverse effects to the                   said that the low acreage limits for the
                                          notifications should be posted on                       maximum extent practicable on the                     NWPs lessen incentives to reduce
                                          district web sites for at least 30 days                 project site. The Corps believes this                 impacts to waters, since many projects
                                          before an NWP verification is issued, to                ensures sufficient consideration of                   that previously qualified for NWP
                                          allow for public comment on those                       alternatives for the types of low-impact              authorization now require individual
                                          proposed activities.                                    projects that are eligible for                        permits. Another commenter stated that
                                             The NWPs issued today comply with                    authorization through NWPs. The Corps                 the acreage limits for all NWPs should
                                          the requirements of the Clean Water                     notes that expansion of existing projects             be based on appropriate scientific and
                                          Act. When the Clean Water Act was                       may support the goals of avoidance and                environmental criteria.
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                                          amended in 1977, Congress recognized                    minimization, in contrast to the                         Many of the NWPs have acreage
                                          the importance of general permits for                   alternative of developing new sites,                  limits, and most of those that do not are
                                          the effective and efficient                             which may involve more substantial                    self-limiting due to the nature of the
                                          implementation of section 404. We do                    adverse impacts. The 404(b)(1)                        authorized activity (e.g., NWP 1 for aids
                                          not agree that pre-construction                         Guidelines contain flexibility for those              to navigation or NWP 10 for mooring


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                                          buoys). Acreage limits in NWPs cannot                   not authorized through NWPs may be                    for activities that have minimal
                                          be waived by the district engineer.                     authorized through regional general                   environmental impacts.
                                          Linear foot limits in some permits can                  permits or individual permits.                           The NWPs continue to provide a
                                          be waived, but only for intermittent and                   One commenter stressed that the                    streamlined authorization process for
                                          ephemeral (not perennial) streams. Two                  NWPs must be reissued in time, so that                those activities that result in minimal
                                          NWPs (i.e., NWPs 13 and 36) have cubic                  there is no gap between the expiration                individual and cumulative adverse
                                          yard limits that may be waived. Those                   date of the current NWPs and the                      effects on the aquatic environment.
                                          NWPs that contain provisions allowing                   effective date of the new NWPs. Two                   Those activities that do not qualify for
                                          district engineers to waive linear foot or              commenters recommended                                NWP authorization may be authorized
                                          cubic yard limits require the district                  administratively extending the current                by regional general permits or
                                          engineer to make a written                              NWPs until the effective date of the new              individual permits.
                                          determination of minimal adverse                        NWPs, through 5 U.S.C. 558(c), which is                  Many commenters asserted that the
                                          effects. In such cases, the permittee                   used to administratively extend                       NWPs result in more than minimal
                                          cannot assume that a waiver was                         National Pollutant Discharge                          adverse effects on the aquatic
                                          granted if the district engineer does not               Elimination System (NDPES) permits                    environment, individually and
                                          affirm that waiver in writing (see                      issued under Section 402 of the Clean                 cumulatively. Several commenters said
                                          general condition 27). The Corps                        Water Act.                                            that the NWPs do not comply with the
                                          believes these limited waiver provisions                   We cannot use 5 U.S.C. 558(c) to                   404(b)(1) Guidelines. One commenter
                                          are appropriate because activities that                 administratively extend the NWPs,                     said that the Corps should provide
                                          exceed the limits may still have                        since that provision of the                           quantitative statistics on actual impacts,
                                          minimal adverse impacts and it may                      Administrative Procedures Act applies                 to predict cumulative impacts resulting
                                          require a site-specific evaluation by the               only to activities of ‘‘a continuing                  from the NWPs. Two commenters
                                          district engineer to decide if they do.                 nature’’ such as discharges of effluents              believe that the draft decision
                                          Other NWPs that do not have limits                      authorized by National Pollutant                      documents do not adequately
                                          typically provide environmental                         Discharge Elimination System permits                  demonstrate that NWPs will result in
                                          benefits, such as aquatic resource                      issued under Section 402 of the Clean                 minimal individual and cumulative
                                          restoration activities authorized by NWP                Water Act. The vast majority of                       impacts to waters of the United States.
                                          27 or hazardous and toxic waste                         activities authorized by NWPs are                     They said that there is not sufficient
                                          cleanup activities authorized by NWP                    construction activities, with specific                documentation to support estimates of
                                          38.                                                     start and end dates, either for the                   the number of times an NWP will be
                                             NWPs 21, 49, and 50 are a special                    discharge of dredged or fill material into            used, the acres impacted, and the acres
                                          case, in that they authorize activities for             waters of the United States, or structures            mitigated. They also stated that there
                                          which review of environmental impacts,                  or work in navigable waters of the                    should be more specific evaluations of
                                          including impacts to aquatic resources,                 United States. In general, these NWP                  particular types of waters, as well as
                                          is separately required under other                      activities are not of a continuing nature,            landscape considerations. Four
                                          Federal authorities (e.g., Surface Mining               and do not meet the requirements of 5                 commenters said that the Corps cannot
                                          Control and Reclamation Act (SMCRA)                     U.S.C. 558(c). The grandfather provision              rely on mitigation to ensure minimal
                                          permits for coal mining activities). The                at 33 CFR 330.6(b) can be used to                     adverse effects, stating that the
                                          Corps believes it would be                              continue the authorization for those                  evaluation of minimal adverse effects
                                          unnecessarily duplicative to separately                 NWP activities that are under                         must be completed prior to issuing a
                                          require the same substantive analyses                   construction, or under contract to begin              general permit. Therefore, the Corps
                                          through an individual permit                            construction, after the NWP expires.                  cannot rely on mitigation that will be
                                          application as are already required                     This provision of the NWP regulations                 offered by permittees when making its
                                          under SMCRA. However, through the                       allows the permittee up to one year to                finding under the 404(b)(1) Guidelines.
                                          pre-construction notification review                    complete the authorized NWP activity.                    When we issue the NWPs, we fully
                                          process, the district engineer will                     Today’s reissued and new permits will                 comply with the requirements of the
                                          consider the analyses prepared for the                  become effective on March 19, 2007, the               404(b)(1) Guidelines at 40 CFR 230.7,
                                          SMCRA permit and exercise                               day after the existing permits expire.                which govern the issuance of general
                                          discretionary authority to require an                   Thus there will be no gap in coverage.                permits under section 404. For the
                                          individual permit in cases where the                    The Corps expects that some States may                section 404 NWPs, each decision
                                          district engineer determines, after                     be able to make their final Section 401               document contains a 404(b)(1)
                                          considering avoidance and reclamation                   water quality certifications for all or               Guidelines analysis. Section 230.7(b) of
                                          activities undertaken pursuant to                       some permits by this date. In cases                   the 404(b)(1) Guidelines requires only a
                                          SMCRA, that the residual adverse                        where the State has not completed a 401               ‘‘written evaluation of the potential
                                          effects are not minimal. The project                    water quality certification by this time,             individual and cumulative impacts of
                                          sponsor is required to obtain written                   the Corps will issue provisional                      the categories of activities to be
                                          verification prior to commencing work.                  verifications and permittees will be                  regulated under the general permit.’’
                                             The acreage limits for the NWPs are                  required to obtain individual State                   Since the required evaluation must be
                                          established so that they authorize most                 certifications prior to commencing                    completed before the NWP is issued, the
                                          activities that result in minimal adverse               discharges into waters of the United                  analysis is predictive in nature. The
                                          effects on the aquatic environment. We                  States.                                               estimates of potential individual and
                                          acknowledge that there may be some                                                                            cumulative impacts, as well as the
                                          activities that exceed the acreage limits               Compliance With Section 404(e) of the                 projected compensatory mitigation that
                                          and still have minimal impacts but the                  Clean Water Act and the 404(b)(1)                     will be required, are based on the best
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                                          Clean Water Act requires us to ensure                   Guidelines                                            available data from the Corps district
                                          that all projects authorized by NWPs                      Several commenters said that the                    offices, based on past use of NWPs. In
                                          have minimal impacts, not that all                      proposed NWPs are contrary to the                     our decision documents, we also used
                                          minimal-impact projects can be                          intent of section 404(e) to provide an                readily available national data on the
                                          authorized by NWPs. Activities that are                 expedited, streamlined permit program                 status of wetlands and other aquatic


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                            11095

                                          habitats in the United States, and the                  ‘‘categories of activities that are similar           impacts over time through preservation
                                          potential impacts of the NWPs on those                  in nature’’ requirement of section 404(e)             and maintenance activities, and
                                          waters.                                                 is to be interpreted broadly, for practical           compensating for impacts by replacing
                                             The 404(b)(1) Guidelines at 40 CFR                   implementation of this general permit                 or providing resources or environments
                                          230.7 do not prohibit the consideration                 program. Nationwide permits, as well as               (see 40 CFR 1508.20). Through the
                                          of mitigation when making the                           other general permits, are intended to                requirements of general condition 20,
                                          predictive evaluation of potential                      reduce administrative burdens on the                  Mitigation, the review of pre-
                                          individual and cumulative impacts that                  Corps and the regulated public, by                    construction notifications by district
                                          may be authorized by an NWP. The                        efficiently authorizing activities that               engineers, and regional and special
                                          practice of using compensatory                          have minimal adverse environmental                    conditions imposed on the NWPs by
                                          mitigation to ensure minimal adverse                    effects. For each NWP that authorizes                 division and district engineers, NWP
                                          individual and cumulative adverse                       activities under Section 404 of the Clean             activities use all these forms of
                                          effects is an important component of the                Water Act, the 404(b)(1) Guidelines                   mitigation so that the adverse effects of
                                          NWP program (see 33 CFR 330.1(e)(3)).                   analysis provides a brief explanation as              the NWPs do not reach the level of
                                             Two commenters said that the Corps                   to why the activities authorized by that              significance that requires an
                                          cannot rely on regional conditioning                    NWP are similar in nature.                            Environmental Impact Statement.
                                          and discretionary authority to ensure                      One commenter said that                              Several commenters stated that the
                                          minimal adverse effects. One                            consideration of impacts resulting from               draft decision documents do not satisfy
                                          commenter objected to the ability of the                general permits should not be limited to              the requirements of the National
                                          district engineer to exercise                           the aquatic environment. This                         Environmental Policy Act (NEPA).
                                          discretionary authority to impose                       commenter said that Section 404(e) of                 Some commenters said that the analyses
                                          conditions on NWP activities. Another                   the Clean Water Act requires permitted                in the decision documents are not based
                                          commenter stated that in order to ensure                activities to have minimal impacts on                 on realistic data. One commenter noted
                                          minimal adverse effects, pre-                           the environment as a whole.                           that the average impact is often much
                                          construction notification should be                        In addition to the requirement that                less than the acreage limit for the NWP,
                                          required for all NWPs. A number of                      there be no more than minimal adverse                 and said that the mitigation ratios seem
                                          commenters said that many of the NWPs                   effects on the aquatic environment,                   too high. One commenter said that the
                                          do not authorize activities that are                    activities authorized by NWPs must also               environmental assessments in draft
                                          similar in nature. They said that the                   result in minimal adverse effects with                decision documents must contain site-
                                          Corps is required to explain why                        regards to the Corps public interest                  specific analyses. Two commenters
                                          activities authorized by an NWP are                     factors (see 33 CFR 330.1(d)), which                  asserted that the cumulative effects
                                          similar in nature to warrant                            include other components of the                       analyses in the decision documents are
                                          authorization under a single NWP.                       environment.                                          inadequate. One commenter said that
                                             The pre-construction notification                                                                          the cumulative effects analysis should
                                          review process and discretionary                        Compliance With the National
                                                                                                                                                        include information on the past use of
                                          authority are important tools to help                   Environmental Policy Act
                                                                                                                                                        NWPs, as well as information on other
                                          ensure that the NWPs authorize only                        Many commenters said that the Corps                development activities expected to have
                                          those activities with minimal individual                must complete an Environmental                        impacts on protected resources.
                                          and cumulative adverse effects. If the                  Impact Statement for the proposed                       We believe the data in the draft
                                          district engineer reviews a pre-                        NWPs. One commenter remarked that                     decision documents comply with the
                                          construction notification and                           the EIS must consider the individual                  requirements of NEPA. The estimates of
                                          determines that the impacts are more                    impacts of the NWPs, as well as their                 the projected use of the NWPs, the acres
                                          than minimal, discretionary authority                   cumulative impacts. One comment                       impacted, and the amount of
                                          will be exercised and either the NWP                    asserted that mitigation cannot be used               compensatory mitigation are based on
                                          will be conditioned to require                          to justify using an environmental                     available data from Corps district
                                          mitigation or other actions to ensure                   assessment for NEPA compliance,                       offices, and other sources of data, such
                                          minimal adverse effects or an individual                instead of an Environmental Impact                    as surveys. Those data are based on pre-
                                          permit will be required. The Corps                      Statement.                                            construction notifications and other
                                          disagrees that pre-construction                            The NWPs authorize activities that                 requests for NWP verifications for
                                          notification is necessary for all NWP                   have minimal individual and                           activities that do not require pre-
                                          activities. However, the Corps has                      cumulative adverse effects on the                     construction notification. For those
                                          expanded the scope of activities                        aquatic environment and satisfy other                 NWP activities that do not require
                                          requiring pre-construction notification.                public interest review factors. The                   notification, it is necessary to derive
                                          Specifically, all activities conducted                  NWPs do not reach the level of                        estimates. For the decision documents,
                                          under NWPs 7, 8, 17, 21, 29, 31, 33, 34,                significance required for an EIS. The                 we must use predictive data, since the
                                          37, 38, 39, 40, 42, 44, 45, 46, 49, and 50              Corps complies with the requirements                  future use of an NWP is speculative.
                                          now require pre-construction                            of the NEPA by preparing an                           Likewise, we cannot provide site-
                                          notification, regardless of acreage                     environmental assessment for each                     specific information for these
                                          impacted. This will enable district                     NWP. When an NWP is issued, a                         environmental assessments, because
                                          engineers to better ensure that these                   Finding of No Significant Impact is also              there are no specific sites or projects
                                          permits authorize only activities with                  issued.                                               associated with the proposed issuance
                                          minimal impacts.                                           The use of mitigation to make a                    of an NWP. Authorized impacts are
                                             These NWPs satisfy the requirement                   Finding of No Significant Impact is a                 usually much less than the acreage limit
                                          under Section 404(e) of the Clean Water                 standard practice for NEPA compliance.                for an NWP because of the avoidance
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                                          Act that the categories of authorized                   For the purposes of NEPA, mitigation                  and minimization required by the terms
                                          activities be similar in nature. The                    includes avoiding impacts, minimizing                 and conditions of the NWPs. The
                                          ‘‘similar in nature’’ provision does not                impacts, rectifying impacts through                   compensatory mitigation data provided
                                          require NWP activities to be identical to               repairing or restoring the affected                   in the decision documents include
                                          each other. We believe that the                         environment, reducing or eliminating                  preservation.


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                                             On June 24, 2005, the Council on                     authorized activities under Section 404               and 33 CFR 330.4(f) will ensure
                                          Environmental Quality issued guidance                   of the Clean Water Act, a draft Section               compliance with the ESA. We anticipate
                                          on the consideration of past actions for                404(b)(1) Guidelines analysis. Those                  that the programmatic consultation will
                                          cumulative effects analyses. According                  draft decision documents were available               result in a biological opinion that
                                          to this guidance, the cumulative effects                for public review and comment at the                  provides tools that districts can use to
                                          analysis needs to consider relevant past                same time as the proposed NWPs,                       better address potential impacts to the
                                          actions that can be used to analyze                     general conditions, and definitions. A                endangered and threatened species that
                                          reasonably foreseeable effects that have                number of commenters who commented                    occur in their areas of regulatory
                                          ‘‘a continuing, additive, and significant               on the proposed NWPs also commented                   jurisdiction. Corps districts will conduct
                                          relationship to those effects.’’ The                    on the draft decision documents.                      their own formal Section 7
                                          guidance also recommends that agencies                  Commenters could also provide input                   consultations as necessary. The
                                          look at the present effects of past actions             on the draft FONSI in each decision                   programmatic consultation will be
                                          that are relevant because of significant                document.                                             conducted for the NWP program; its
                                          cause-and-effect relationships with the                                                                       applicability to NWP 21 and other
                                                                                                  Compliance With the Endangered
                                          effects for the proposed action and its                                                                       NWPs will be addressed as part of the
                                                                                                  Species Act
                                          alternatives. Except for a few activities,                                                                    programmatic consultation itself.
                                          the NWPs do not authorize activities of                    In the September 26, 2006, Federal                    One commenter said that the Corps
                                          a continuing nature. In general, they                   Register notice, we stated that we will               cannot rely on permit applicants to
                                          authorize construction activities with                  conduct Endangered Species Act                        notify them in cases where ESA
                                          specific start and end dates. The NWPs                  Section 7(a)(2) consultation for the                  consultation is necessary. Two
                                          can be issued for only a period of five                 NWPs. Since the issuance of the                       commenters said that the proposed
                                          years or less, and once an NWP expires,                 September 26, 2006, proposal, the Corps               changes to general condition 17, which
                                          it cannot be used to authorize activities               has been working with the National                    requires district engineers to notify
                                          in waters of the United States. An                      Marine Fisheries Service (NMFS) and                   prospective permittees of their ‘‘no
                                          activity must then be authorized by the                 the U.S. Fish and Wildlife Service                    effect’’ or ‘‘may affect’’ determinations
                                          reissued NWP, another NWP, a regional                   (USFWS) to develop an analysis plan to                within 45 days of receipt of a complete
                                          general permit, or an individual permit.                guide the formal programmatic Section                 pre-construction notification, violates
                                          The cumulative effects analysis is more                 7 consultation for the NWPs. As soon as               the ESA since the Corps will be unable
                                          properly focused on the permits that can                the analysis plan is completed, the                   to make its decision based on the best
                                          be used to authorize regulated activities,              Corps will request programmatic                       available science. Two commenters said
                                          not past permits that have expired.                     Endangered Species Act Section 7(a)(2)                that the Corps must require pre-
                                          Therefore, the cumulative effects                       consultation with the USFWS and                       construction notifications for all NWP
                                          analysis for the NWP issuance needs to                  NMFS. Prior to the effective date of                  activities to help ensure compliance
                                          focus on the reasonably foreseeable                     these NWPs, the Corps will issue a                    with the requirements of the ESA. Two
                                          cumulative effects that are expected to                 section 7(d) determination for the NWP                other commenters stated that species-
                                          occur during the five year period the                   Program.                                              specific regional conditions must be
                                          NWPs are valid. We use information on                      Two commenters said the Corps must                 imposed on the NWPs to protect
                                          past use of the NWPs to estimate how                    conduct Endangered Species Act                        endangered and threatened species.
                                          often an NWP will be used during the                    consultation before the NWPs are                         Non-federal permittees shall notify
                                          period it will be valid, and to estimate                issued. One of these commenters said                  the district engineer if any listed species
                                          the impacts and compensatory                            that the Corps must conduct                           or designated critical habitat might be
                                          mitigation resulting from the use of that               programmatic section 7 consultation for               affected or is in the vicinity of the
                                          NWP.                                                    the NWP program, with mandatory                       project, or if the project is located in
                                             One commenter requested                              district-by-district formal consultations.            designated critical habitat, and in such
                                          clarification as to whether the draft                   One commenter requested a timeline for                cases shall not begin work on the
                                          decision documents included an                          the programmatic Section 7 consultation               activity until notified by the district
                                          environmental assessment, an EIS, or                    with the USFWS and NMFS. Another                      engineer that the requirements of the
                                          another type of NEPA document. Two                      commenter asked for clarification                     ESA have been satisfied and that the
                                          commenters remarked that the Corps                      whether Section 7 ESA consultation                    activity is authorized. This requirement
                                          failed to solicit public comment on the                 will be conducted for each NWP                        applies even when a pre-construction
                                          environmental assessments for the                       authorization or the NWP program as a                 notification would not otherwise be
                                          proposed NWPs. Two commenters                           whole. One commenter objected to the                  required. In such cases, this condition
                                          objected to the Finding of No Significant               Corps conducting section 7 consultation               also prohibits the prospective permittee
                                          Impact (FONSI) in each draft decision                   for coal mining activities authorized by              from conducting the NWP activity until
                                          document, stating that it is                            the Surface Mining Control and                        the district engineer notifies him or her
                                          inappropriate to do a FONSI for a                       Reclamation Act.                                      that the requirements of the ESA have
                                          proposed action. Another commenter                         The programmatic ESA consultation                  been fulfilled and the activity is
                                          concurred with the FONSI found in                       will be conducted for the NWP program                 authorized by NWP. The ESA
                                          each NWP decision document. One                         as a whole, and will be concluded as                  regulations at 50 CFR part 402 do not
                                          commenter said that the draft decision                  expeditiously as possible. To address                 require ESA consultation for those
                                          documents accurately analyzed                           ESA compliance while programmatic                     activities that will not affect endangered
                                          anticipated environmental effects of the                consultation is being conducted, a                    or threatened species or destroy or
                                          proposed NWPs.                                          revised Section 7(d) determination will               modify designated critical habitat. In
                                             A draft environmental assessment was                 be issued for the NWP program before                  some districts, regional conditions will
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                                          prepared for each of the proposed                       the effective date of these NWPs. The                 be imposed on the NWPs to protect
                                          NWPs. The draft environmental                           Section 7(d) determination discusses                  listed species and critical habitat.
                                          assessment was in the draft decision                    how the issuance of these NWPs will                      The notification requirement in
                                          document, along with the draft                          not foreclose any options. The                        general condition 17 does not violate
                                          statement of findings and, if the NWP                   requirements of general condition 17                  the ESA. Forty-five days is generally


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11097

                                          sufficient to screen proposed activities                waived, the acreage limit of the NWP                  engineers, depending upon assessments
                                          for potential effects to endangered and                 still applies. We believe it is more                  of site-specific conditions. Even though
                                          threatened species or designated critical               appropriate to limit losses of ephemeral              the acreage limits of NWPs 29, 39, 40,
                                          habitat, and determine if section 7                     stream beds through the national NWP                  42, and 43 also apply to losses of stream
                                          consultation is necessary. The                          terms and conditions, to provide                      bed, the linear foot limit is a useful tool
                                          notification requirement will help                      consistent protection for those waters                for ensuring minimal adverse effects to
                                          improve ESA compliance by keeping                       across the country. Regional differences              these linear aquatic ecosystems. The 300
                                          the prospective permittee aware of the                  in the values applied to ephemeral                    linear foot limit for filling and
                                          status of his or her pre-construction                   stream functions and services can be                  excavating stream beds does not apply
                                          notification and preclude applicants                    addressed through the waiver process.                 to ditches constructed in wetlands, or to
                                          from assuming that they can proceed                     We believe the 300 linear foot limit, in              ditches constructed in uplands that are
                                          after the 45 day pre-construction                       conjunction with the waiver process,                  determined to be waters of the United
                                          notification period has ended, if they                  provides sufficient flexibility for the               States. However, the 300 linear foot
                                          have not heard back from the Corps that                 NWP program while ensuring minimal                    limit does apply to ditches that are
                                          ESA requirements have been fulfilled                    adverse effects.                                      constructed by modifying streams
                                          and the activity is authorized. Districts                  Three commenters recommended that                  through channelization or other
                                          will continue to develop regional                       the Corps modify its definition of                    activities.
                                          conditions to further protect endangered                ‘‘ephemeral stream’’ to simplify the
                                                                                                  process of distinguishing between                     Pre-Construction Notification
                                          and threatened species, as well as
                                          critical habitat.                                       ephemeral and intermittent streams                       Many commenters objected to the
                                                                                                  instead of applying the 300 linear foot               proposal to add or expand pre-
                                          Linear Foot Limits for Stream Bed                       limit to ephemeral streams. Another                   construction notification requirements
                                          Impacts                                                 commenter indicated that the difficulty               for several NWPs, and a few of these
                                             In the September 26, 2006, Federal                   of distinguishing between ephemeral                   commenters said that lowering the pre-
                                          Register notice, we proposed to modify                  and intermittent streams is sufficient                construction notification threshold will
                                          several NWPs to include ephemeral                       justification for including ephemeral                 substantially increase the Corps
                                          streams in the 300 linear foot limits for               streams in the 300 linear foot limit. In              workload. Several commenters stated
                                          losses of stream beds. We also proposed                 contrast, several commenters stated that              that increasing the number of activities
                                          to allow district engineers to issue                    including ephemeral streams in the 300                that require pre-construction
                                          written waivers to the 300 linear foot                  linear foot limit would not simplify the              notification will result in additional
                                          limit for intermittent and ephemeral                    administration of the NWP program,                    delays and costs for permit applicants.
                                          streams, upon making a determination                    because it would result in a large                    In contrast, a number of commenters
                                          that the adverse effects on the aquatic                 number of individual permits, as well as              said that pre-construction notification
                                          environment will be minimal. Many                       substantial increases in the Corps                    should be required for all NWP
                                          commenters objected to including                        workload. Two commenters asked the                    activities, so that site-specific concerns
                                          ephemeral streams in the 300 linear foot                Corps to establish criteria for                       can be more effectively addressed. One
                                          limit for stream beds for NWPs 29, 39,                  determining when a waiver of the 300                  commenter asserted that the use of the
                                          40, 42, and 43. Many other commenters                   linear foot limit can be issued. One                  pre-construction notification process
                                          supported the proposed change. A large                  commenter stated that the 300 linear                  and the use of discretionary authority
                                          number of commenters objected to                        foot limit should not apply to filling or             should be limited, to provide more
                                          allowing district engineers to waive the                excavating drainage ditches. One of                   certainty to the NWP authorization
                                          300 linear foot limit, stating that miles               these commenters said that an acreage                 process. Another commenter said that
                                          of stream bed could be lost, resulting in               limit should be applied to streams,                   the decision to lower pre-construction
                                          more than minimal adverse                               instead of a linear foot limit.                       notification thresholds should be left to
                                          environmental effects. A few                               Modifying the definition of                        division engineers and the regional
                                          commenters supported the proposed                       ‘‘ephemeral stream’’ is not an                        conditioning process, to provide more
                                          waiver. One commenter said that limits                  appropriate alternative to modifying the              flexibility for the NWP program.
                                          to filling or excavating ephemeral                      300 linear foot limit. The definitions of                Modifying NWPs 39, 40, 42, and 43 to
                                          streams should be addressed through                     ‘‘ephemeral stream’’ and ‘‘intermittent               require pre-construction notification for
                                          the regional conditioning process,                      stream’’ that were first promulgated for              all activities will help ensure that these
                                          instead of the national terms and                       the NWPs in 2000 are based on the                     NWPs authorize only those activities
                                          conditions of the NWPs. Another                         hydrologic differences between those                  that result in minimal individual and
                                          commenter recommended imposing a                        stream types, especially the differences              cumulative adverse effects on the
                                          higher linear foot limit for losses of                  in how the stream bed interacts with the              aquatic environment and other public
                                          ephemeral streams.                                      water table. We do not agree that the                 interest review factors, such as flood
                                             Ephemeral streams are important                      changes to the 300 linear foot limit will             hazards and floodplain values. Corps
                                          components of the stream network.                       result in a large increase in the number              districts have already been receiving
                                          Applying the 300 linear foot limit to                   of individual permits processed per                   large numbers of verification requests
                                          ephemeral stream beds will help ensure                  year. Under the current NWPs, district                for NWP 39, 40, 42, and 43 activities
                                          that the applicable NWPs will authorize                 engineers could exercise discretionary                that do not require pre-construction
                                          activities with minimal individual and                  authority and require individual permits              notification, so we believe that this
                                          cumulative adverse effects on the                       if proposed impacts to ephemeral                      change will not result in a substantial
                                          aquatic environment. The ability of                     streams would be more than minimal.                   increase in our workload. In addition,
                                          district engineers to issue written                     We do not believe it would be                         the modified pre-construction
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                                          waivers of the 300 linear foot limit for                appropriate to establish national criteria            notification threshold will facilitate
                                          intermittent and ephemeral stream beds                  for determining when a waiver of the                  compliance with the Endangered
                                          provides flexibility in the                             300 linear foot limit would be applied.               Species Act and Section 106 of the
                                          administration of the NWP program. In                   These determinations should be made                   National Historic Preservation Act, by
                                          cases where the 300 linear foot limit is                on a case-by-case basis by district                   better ensuring notice of activities that


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                                          11098                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          may have a higher likelihood of                         applicable NWP. Many NWP activities                   any future guidance that may be issued
                                          affecting endangered or threatened                      that result in a discharge of dredged or              by appropriate Executive Branch
                                          species, designated critical habitat, or                fill material into waters of the United               agencies (e.g., the Corps, U.S.
                                          historic properties. We do not agree that               States, regardless of water depth, require            Environmental Protection Agency).
                                          it is necessary to require pre-                         pre-construction notification, which                  Under the current regulations and
                                          construction notifications for all NWP                  will allow district engineers to review               guidance, intermittent and ephemeral
                                          activities, because many NWP activities                 those activities on a case-by-case basis              streams may meet the regulatory
                                          have negligible effects on the aquatic                  and assess potential effects on the                   definition of ‘‘waters of the United
                                          environment and the public interest                     hydrologic balance of the area in the                 States’’ and be subject to Clean Water
                                          review factors. We have focused the pre-                vicinity of the proposed work.                        Act jurisdiction. Regulatory jurisdiction
                                          construction notification requirements                     One commenter said that the pre-                   over these waterbodies will be
                                          on those activities that have the                       construction notification process should              determined on a case-by-case basis by
                                          potential for adverse effects that may                  be modified to require notification of                district engineers, in accordance with
                                          require additional scrutiny by district                 Indian Tribes, to provide them with the               current and future regulations and
                                          engineers, including ESA and/or NHPA                    opportunity to comment on proposed                    guidance.
                                          consultation.                                           activities that may result in the violation              One commenter said that when
                                             The pre-construction notification and                of Indian rights. This commenter also                 applying the NWP acreage limits to
                                          discretionary authority processes                       said that if the Indian Tribe identifies a            wetlands, the Corps should not include
                                          provide flexibility to the Corps                        potential conflict with Federally-                    all wetlands, just those subject to Clean
                                          regulatory program, by allowing the                     protected Indian rights, the use of the               Water Act jurisdiction. One commenter
                                          Corps to focus its limited resources on                 NWPs should not be allowed.                           stated that a clearer definition of
                                          activities that have the potential to have                 The regional conditioning process, as              ‘‘navigable waters’’ is needed. Another
                                          more than minimal adverse effects on                    well as government-to-government                      commenter said that ditches are not
                                          the aquatic environment. We believe                     consultation between Tribes and the                   waters of the United States, and impacts
                                          that the proposed changes to the pre-                   Corps districts where Tribal lands are                to ditches should instead be addressed
                                          construction notification thresholds are                located, are more appropriate                         through state programs. A commenter
                                          necessary for effective implementation                  mechanisms to address this                            stated that the Corps must promulgate
                                          of the NWP program, and to address                      commenter’s concerns, since there are                 regulations to define ‘‘waters of the
                                          issues of concern at the national level.                over 580 Federally-recognized tribes,                 United States’’ for the purposes of
                                             One commenter objected to the                        and each Tribe is likely to have different            implementing the NWP program.
                                          increased use of the pre-construction                   concerns regarding the implementation                    The acreage limits of the NWPs apply
                                          notification process and the waivers of                 of the NWP program. General condition                 only to losses of waters of the United
                                          limits, such as the 300 linear foot limit               16 states that no NWP activity may                    States, including jurisdictional wetlands
                                          for the loss of intermittent and                        impair reserved Tribal rights. Activities             (see the definition of the term ‘‘loss of
                                          ephemeral stream beds for certain                       that do impair reserved Tribal rights are             waters of the United States’’ in the
                                          NWPs, to authorize activities by NWP.                   not authorized by NWPs. Regional                      ‘‘Definitions’’ section of the NWPs).
                                          Another commenter said that it is an                    conditions are an effective mechanism                 Similarly, linear foot limits apply only
                                          administrative burden to require the use                for addressing the concerns of a specific             to jurisdictional streams. Ditches may
                                          of NWP 33 with other NWPs when in-                      Indian Tribe, and can be used to                      also be subject to jurisdiction under
                                          stream construction activities need to                  facilitate working relationships between              Section 404 of the Clean Water Act and/
                                          occur in dry conditions. This                           the Corps and the Tribe to help the                   or Section 10 of the Rivers and Harbors
                                          commenter said that NWP 33 should                       Corps fulfill its trust responsibilities.             Act of 1899, if they meet the regulatory
                                          only be used when temporary work is                                                                           definitions of ‘‘waters of the United
                                                                                                  Clean Water Act Jurisdiction
                                          done in waters of the United States, and                                                                      States’’ and/or ‘‘navigable waters of the
                                          no other NWP is needed to authorize                        On June 19, 2006, the Supreme Court                United States.’’ Waters of the United
                                          permanent structures or fills for the                   issued its decision in the case of                    States are defined at 33 CFR part 328
                                          activity. One commenter recommended                     Rapanos et ux, et al, v. United States.               and navigable waters of the United
                                          requiring pre-construction notifications                Many commenters cited this decision,                  States are defined at 33 CFR part 329.
                                          for filling waters of the United States                 as well as other court decisions, and
                                          that are five or more feet deep, because                said that the proposed NWPs exceed the                Regional Conditioning of Nationwide
                                          of the effects on the hydrologic balance                Corps jurisdictional authority under                  Permits
                                          of a region.                                            Section 404 of the Clean Water Act.                      One commenter stated that regional
                                             The ability to waive limits after the                Several commenters said that ephemeral                conditions are unnecessary, and result
                                          review of a pre-construction notification               streams are not subject to Clean Water                in too much restriction of the NWPs. A
                                          and a written determination that the                    Act jurisdiction and should not be                    commenter remarked that placing too
                                          adverse effects of a particular NWP                     covered in the NWPs. Another                          many regional conditions on the NWPs
                                          activity will be minimal provides                       commenter asserted that intermittent                  is contrary to E.O. 13274,
                                          flexibility to the NWP program, and                     streams are not waters of the United                  Environmental Stewardship and
                                          allows the Corps to focus more of its                   States.                                               Transportation Infrastructure Project
                                          resources on those activities that require                 The Rapanos decision, as well as                   Reviews. One commenter said that
                                          individual permits and may have                         other court decisions made in the past                regional conditions should not be
                                          substantial adverse effects on the                      several years, raises questions about the             redundant with the requirements of
                                          aquatic environment and the public                      jurisdiction of the Clean Water Act,                  other agencies, and the streamlining
                                          interest. In the final NWPs, we have                    including Section 404, over some                      objective of the NWPs should be
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                                          addressed the concern regarding the                     intermittent and ephemeral streams and                maintained.
                                          requirement to use NWP 33 for all                       their adjacent wetlands. The Corps will                  Regional conditions are necessary to
                                          temporary construction, access, and                     assess jurisdiction regarding such                    account for regional differences in
                                          dewatering activities. Those changes are                waters on a case-by-case basis in                     aquatic resource functions, services, and
                                          discussed in further detail for each                    accordance with evolving case law and                 values and to ensure that the NWPs


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11099

                                          authorize only those activities that have               condition 19, designated critical                     Corps districts, providing for more
                                          minimal individual and cumulative                       resource waters, provides a national list             consistent information collection and
                                          adverse effects on the aquatic                          of high value waters. Districts can                   storage, and will be readily available for
                                          environment and other public interest                   coordinate with other agencies to                     analysis and reporting. The standard
                                          review factors. Regional conditions are                 develop lists of high value wetlands                  structure of ORM will also promote
                                          important tools for protecting                          within their district boundaries.                     consistency in Regulatory Program
                                          endangered and threatened species,                                                                            implementation.
                                                                                                  Data Collection                                          ORM 2.0 will help improve data
                                          designated critical habitat for those
                                          species, essential fish habitat, historic                  One commenter said that the                        collection for the NWP program, as well
                                          properties, and other important                         supporting data used by the Corps falls               as other types of permits issued by the
                                          resources. As a general matter, we agree                short of the standards required by the                Corps. Data collection will be more
                                          that regional conditions should not                     Data Quality Act of 2001, and the Office              standard among permit types, especially
                                          duplicate the requirements of other                     of Management and Budget’s                            for impact and mitigation data. We will
                                          agencies, but the Corps often has the                   ‘‘Guidelines for Ensuring and                         continue to collect data on authorized
                                          responsibility to comply with other                     Maximizing the Quality, Objectivity,                  losses of waters of the United States,
                                          statutes and regulations administered by                Utility, and Integrity of Information                 including resource type, acreage, and
                                          other agencies.                                         Disseminated by Federal Agencies.’’                   impact type. ORM 2.0 incorporates
                                            Two commenters said that there                        This commenter stated that the Corps                  several additional AIS resources to
                                          needs to be clearer rules for the                       should provide data on aquatic resource               assist in the tracking of all required
                                          adoption of regional conditions for the                 functions to support its minimal impact               compensatory mitigation, including the
                                          NWPs. A couple of commenters                            determinations.                                       amount, type (e.g., reestablishment), and
                                          indicated that districts need to provide                   The data used for the NWP decision                 source (i.e., permittee-responsible
                                          justifications for proposed regional                    documents are the best available data at              mitigation, mitigation bank, or in-lieu
                                          condition, and make that information                    a national scale. The estimated impacts               fee).
                                          available to the public. Three                          and mitigation provided in the decision                  ORM 2.0 will also facilitate
                                          commenters said that regional                           documents were developed by                           compliance with the Endangered
                                          conditions should not be limited to                     reviewing and analyzing permit data                   Species Act, the National Historic
                                          further restricting the use of the NWPs.                from our district offices, as well as                 Preservation Act, and the essential fish
                                          One commenter said that regional                        through consideration of how proposed                 habitat provisions of the Magnuson-
                                          conditions should not be based on                       changes to the NWPs would affect the                  Stevens Fishery Management and
                                          district boundaries. Instead, they should               amounts of authorized impacts and                     Conservation Act. Screening tools based
                                          be based on ecoregions or other                         mitigation. Data on aquatic resource                  on available data for those resources
                                          ecologically-delineated areas. Another                  functions is generally not available. The             will help Corps personnel identify
                                          commenter recommended that the                          National Wetland Inventory examines                   activities that may affect those resources
                                          Corps work with other agencies to                       wetland status and trends for the                     and require further consultation. The
                                          develop a list of high value wetlands in                conterminous United States, but                       available resource data will be provided
                                          which NWPs cannot be used.                              information on wetland quality and                    by other agencies, through data sharing
                                            Regional conditions may only further                  function is not available.                            agreements. Available data sets from the
                                          condition or restrict the applicability of                 Three commenters expressed concern                 national, state, and local levels can be
                                          an NWP (see 33 CFR 330.1(d)). In areas                  about tracking permanent and                          utilized by ORM 2.0.
                                          where environmental conditions and                      temporary impacts to waters of the                       ORM 2.0 is capable of supporting
                                          other circumstances warrant less                        United States and recommended that                    electronic interagency coordination. For
                                          restrictive general permit conditions,                  the Corps implement a national tracking               activities that typically require
                                          district engineers may issue regional                   and monitoring system. This system                    interagency coordination and
                                          general permits to authorize similar                    would also facilitate the sharing of                  consultation, agencies will have the
                                          activities, as long as those general                    information with cooperating resource                 option of receiving electronic
                                          permits meet applicable requirements.                   agencies and help improve decision                    coordination notices and consultation
                                          The regulations governing the adoption                  making.                                               requests and of responding to the Corps
                                          of regional conditions are provided at 33                  We are in the process of transitioning             via a link to ORM 2.0. Agencies will be
                                          CFR 330.5(c). We believe it is necessary                to a new automated information system                 required to enter into a Memorandum of
                                          to provide flexibility to division                      (AIS) for the Corps regulatory program.               Agreement supporting the use of
                                          engineers to determine the necessity                    The new AIS is version 2.0 of the                     electronic communications for permit
                                          and appropriateness of regional                         ‘‘OMBIL Regulatory Module’’ (ORM                      activities.
                                          conditions to address concerns                          2.0). This national tracking and                         ORM 2.0 will also include time
                                          regarding the use of NWPs in a                          monitoring system will improve and                    tracking features to help remind Corps
                                          particular area. The notices issued by                  standardize data collection for the Corps             project managers when the end of the
                                          Corps districts soliciting public                       regulatory program, and will assist in                45-day pre-construction notification
                                          comment on proposed regional                            decision-making for permit actions and                review will occur. Monitoring and
                                          conditions are required to include                      other types of regulatory activities, such            enforcement activities will also be
                                          statements concerning the                               as jurisdictional determinations. ORM                 supported by ORM 2.0, including the
                                          environmental factors or other public                   2.0 will be spatially enabled, using                  tracking of when monitoring reports for
                                          interest factors resulting in the need for              geographic information systems and                    compensatory mitigation projects are
                                          regional conditions (see 33 CFR                         other analytical tools that will provide              due.
                                          330.5(c)(1)). Regional conditions may be                more efficient and effective processing                  ORM 2.0 will also support an
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                                          based on geographic areas other than                    of permit applications, jurisdictional                electronic permit application, thereby
                                          district boundaries. Regional conditions                determinations, and other tasks.                      allowing prospective permittees to
                                          may be imposed on the use of NWPs in                    Cumulative impact analysis will also be               submit their pre-construction
                                          watersheds, counties, states, ecoregions,               supported by ORM 2.0. The structure of                notifications electronically to the
                                          or other types of areas. General                        ORM 2.0 will also be standard among                   appropriate Corps district. Permit


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                                          applicants will be able to check the                    types of waters often have different                  do more enforcement and monitoring of
                                          status of their permit applications                     functions.                                            activities authorized by NWPs.
                                          through the electronic permit Web site.                    The NWPs do recognize different                      We do not believe it would be
                                                                                                  types of waters. The terms and                        appropriate or necessary to establish an
                                          Other Issues                                                                                                  administrative appeal process for the
                                                                                                  conditions of NWPs are often based on
                                             One commenter said that the Corps                    the characteristics of different types of             NWP program, since the NWPs
                                          should stop issuing NWPs until                          waters. For example, NWP 39 does not                  authorize only those activities that have
                                          effective compensatory mitigation is                    authorize discharges of dredged or fill               minimal individual and cumulative
                                          provided for those permits. Several                     into non-tidal wetlands adjacent to tidal             adverse effects on the aquatic
                                          commenters stated that the Corps places                 waters.                                               environment. The administrative appeal
                                          too much reliance on compensatory                          One commenter said that the                        process at 33 CFR part 331 applies only
                                          mitigation, citing recent studies that                  requirement for NWP activities to be                  to individual permits and jurisdictional
                                          concluded that compensatory mitigation                  single and complete projects should not               determinations, and does not provide
                                          projects often fail to achieve their                    be removed, citing the proposed                       for third party administrative appeals.
                                          objectives. A couple of commenters                      changes to NWPs 13, 15, 18, and 19.                     Performance measures established for
                                          asserted that the Corps should not rely                 This commenter stated that the                        the Regulatory Program require our
                                          on compensatory mitigation to ensure                    requirement for single and complete                   district offices to conduct compliance
                                          minimal individual and cumulative                       projects does not appear outside of the               inspections for a proportion of general
                                          adverse effects. Another commenter                      Corps definition at 33 CFR 330.2(i). One              permit activities occurring in a given
                                          objected to the more stringent                          commenter objected to the removal of                  year.
                                          requirements for compensatory                                                                                   One commenter said that the Corps
                                                                                                  the requirement in several NWPs to
                                          mitigation for NWP activities, stating                                                                        should retain a separate NWP for
                                                                                                  submit an avoidance/minimization
                                          that compensatory mitigation for small                                                                        aggregate mining activities (the current
                                                                                                  statement with the pre-construction
                                          impacts tends to be more expensive                                                                            NWP 44), and provide greater acreage
                                                                                                  notification.
                                          than the costs to plan and construct the                                                                      limits, since the proposed modification
                                                                                                     The requirement that NWPs authorize                of NWP 44 will have little utility for the
                                          proposed activity requiring NWP
                                                                                                  single and complete projects applies to               aggregate mining industry.
                                          authorization.
                                             Compensatory mitigation is an                        all NWPs. Limiting the NWPs to                          We do not believe it would be
                                          important mechanism to help ensure                      authorize only single and complete                    appropriate to issue another NWP for
                                          that the NWPs authorize activities that                 projects is a long-standing practice, and             aggregate mining activities, with greater
                                          result in minimal individual and                        we are adding a new general condition                 acreage limit. The acreage limit for NWP
                                          cumulative adverse effects on the                       (GC 28) to clarify that the NWPs only                 44 is intended to ensure that this NWP
                                          aquatic environmental. We acknowledge                   authorize single and complete projects.               authorizes only those activities with
                                          that the ecological success of                             The requirement for an avoidance/                  minimal individual and cumulative
                                          compensatory mitigation projects varies                 minimization statement that was in                    adverse effects on the aquatic
                                          widely. Some compensatory mitigation                    NWPs 39, 43, and 44 is not necessary,                 environment. This NWP authorizes
                                          projects fail to meet their objectives,                 because we have modified NWP 39 to                    aggregate mining activities.
                                          while others do result in successful                    require pre-construction notification for               Two commenters said that all
                                          replacement of aquatic resource                         all activities, and we are requiring pre-             references to excavation in the NWPs
                                          functions that are lost as a result of                  construction notification for all                     should cite 33 CFR 323.3(d) to clarify
                                          activities authorized by NWPs. We are                   construction and expansion of storm                   that not all excavation activities require
                                          committed to improving compliance for                   water management facilities under NWP                 section 404 permits. One commenter
                                          compensatory mitigation required for                    43. In addition, general condition 20                 suggested adding a new general
                                          Department of the Army permits,                         requires permittees to avoid and                      condition which would require
                                          including NWPs. District engineers have                 minimize adverse effects to waters of                 submittal of a delineation of non-
                                          the flexibility to determine when                       the United State to the maximum extent                jurisdictional wetlands with the pre-
                                          compensatory mitigation should be                       practicable on the project site. When                 construction notification for those
                                          required for activities authorized by                   reviewing a pre-construction                          NWPs authorizing development
                                          NWPs. If it is not appropriate or                       notification, the district engineer will              activities, so that states could be
                                          practicable to require compensatory                     determine whether sufficient avoidance                notified of these activities. One
                                          mitigation for a particular activity, and               and minimization of impacts to waters                 commenter said that NWPs should not
                                          that activity will result in minimal                    of the United States has occurred, and                authorize activities in springs, seeps,
                                          adverse effects on the aquatic                          whether the activity complies with                    headwater streams, and fens.
                                          environment, then the district engineer                 general condition 20. It is the                         Many excavation activities result in
                                          may determine that compensatory                         responsibility of the district engineer to            discharges of dredged material that
                                          mitigation is not necessary. Otherwise,                 make this determination, and we do not                require section 404 permits. When
                                          if the proposed activity will result in                 believe it is appropriate to place that               reviewing pre-construction
                                          more than minimal adverse effects on                    burden on the prospective permittee by                notifications, district engineers will
                                          the aquatic environment after                           requiring the submittal of a statement                determine whether an excavation
                                          determining that compensatory                           with the pre-construction notification.               activity results in a discharge of dredged
                                          mitigation is not appropriate or                           One commenter recommended that                     material and requires a section 404
                                          practicable, then an individual permit                  the Corps adopt an administrative                     permit, or whether a permit is not
                                          would be required.                                      appeal process for activities authorized              needed. It is not appropriate for the
                                             One commenter said that the NWPs                     by NWPs, which would provide for                      Corps to require prospective permittees
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                                          do not distinguish between different                    third party appeals. Another commenter                to submit delineations of areas that are
                                          types of waters, but combine waters                     said that compliance inspections should               not waters of the United States with
                                          when applying the acreage limit for the                 be conducted for a certain number of                  their pre-construction notifications.
                                          NWP. This commenter stated that the                     NWP activities per year. One                          States that regulate these non-
                                          Corps needs to recognize that different                 commenter said that the Corps needs to                jurisdictional aquatic habitats should


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                                          address those concerns through their                    the United States without a valid                     materials in an upland area, unless the
                                          permit processes. The NWPs can be                       permit, in violation of the Clean Water               district engineer authorizes the use of
                                          regionally conditioned to restrict or                   Act. The district engineer will use his or            another area. This term does not suggest
                                          prohibit NWP activities in springs,                     her discretion, when determining                      that excavation activities not involving
                                          seeps, headwater streams, and fens.                     whether to pursue an enforcement                      discharges of fill or dredge material into
                                            One commenter requested that the                      action. The use of provisional NWP                    Section 404 waters are regulated by the
                                          Corps reissue NWP 26, which                             verifications is necessary to provide                 Corps. Instead, it specifies the type of
                                          authorized discharges into headwaters                   timely responses to prospective                       site that may receive dredged or
                                          and isolated waters, in accordance with                 permittees in cases where the State or                excavated material under this NWP for
                                          the limits described in the December 13,                Tribe has not yet completed its                       activities that do require Section 404
                                          1996 Federal Register notice.                           certification process. In addition, some              authorization. Excavation activities in
                                            There are no plans to reissue NWP 26.                 States prefer not to issue general                    waters of the United States require
                                          This NWP expired on June 7, 2000. We                    certifications for some or all NWPs.                  section 404 permits if they result in a
                                          have issued NWPs that have replaced                     These States require a review of                      discharge of dredged or fill material into
                                          NWP 26.                                                 individual PCNs before issuing water                  those waters (see 33 CFR 323.2(d)).
                                          Water Quality Certification/Coastal                     quality certification for a particular                Activities that result in only incidental
                                          Zone Management Act Consistency                         activity.                                             fallback do not require permits. Since
                                          Determination Issues                                                                                          the definition of ‘‘currently serviceable’’
                                                                                                  Discussion of Comments and Final                      is used in NWPs 41 and 47, it is more
                                             One commenter said that the Corps                    Permit Decisions                                      appropriate to have the definition in the
                                          should provide an opportunity for state                                                                       ‘‘Definitions’’ section, for easier
                                                                                                  Nationwide Permits
                                          and Tribal water quality certification                                                                        reference.
                                          agencies to participate early in the NWP                   NWP 1. Aids to Navigation. There                      A couple of commenters objected to
                                          reissuance process, to reduce potential                 were no changes proposed for this NWP,                moving the provision authorizing the
                                          conflicts during the water quality                      and no comments were received. This                   repair, rehabilitation, or replacement of
                                          certification process. Another                          NWP is reissued without change.                       structures or fills destroyed or damaged
                                          commenter requested clarification                          NWP 2. Structures in Artificial                    by discrete events to proposed NWP A,
                                          regarding enforcement of the NWPs, in                   Canals. There were no changes                         which requires pre-construction
                                          cases where a provisional NWP                           proposed for this NWP, and no                         notification for all activities. These
                                          verification is issued, but the permittee               comments were received. This NWP is                   commenters said that the proposed
                                          proceeds with work without receiving                    reissued without change.                              change would hinder the ability of
                                          the individual water quality                               NWP 3. Maintenance. We proposed to                 utility companies and transportation
                                          certification. This commenter asked                     modify this NWP by removing the                       departments to quickly repair utility
                                          whether the Corps or the state would                    provisions for the restoration of uplands             lines, roads, and other important
                                          initiate an enforcement action. One                     damaged by discrete events. We also                   infrastructure damaged or destroyed by
                                          commenter objected to use of                            proposed to add maintenance dredging                  severe storms. One commenter
                                          provisional NWP verifications in cases                  or excavation of intakes, outfalls, and               suggested adding another note to this
                                          where water quality certification has not               canals, which was authorized by NWP                   NWP, to refer potential applicants to
                                          yet been issued for a particular NWP                    7.                                                    NWP 45 in cases where structures that
                                          activity.                                                  Several commenters expressed                       have been made non-functional by some
                                             We cannot begin coordination for                     support for the proposed changes to this              discrete event may qualify for repair,
                                          water quality certification at an earlier               NWP. One commenter objected to the                    rehabilitation, or replacement.
                                          time in the NWP reissuance process.                     removal of the explicit references to the                We have restored the language
                                          States and Tribes need to see the                       ‘‘water quality’’ and ‘‘management of                 authorizing the repair, rehabilitation, or
                                          proposed permit and general condition                   water flows’’ general conditions, stating             replacement of structures or fills
                                          language, which is not available until                  that the removal of those references                  destroyed or damaged by storms or
                                          the publication of the proposal in the                  would change the intent of the NWP.                   other discrete events in paragraph (a) of
                                          Federal Register, in order to proceed                   One commenter recommended                             NWP 3, and removed it from proposed
                                          with the certification process. We                      removing the language regarding the                   NWP A (now designated as NWP 45).
                                          believe there is generally adequate time                disposal of excavated material in upland              Because of this change, it is no longer
                                          to complete the water quality                           areas, since it implies that excavation               appropriate to add a note to this NWP
                                          certification process, however, where                   activities are regulated by the Corps                 to refer to NWP 45.
                                          there is not, the Corps will issue only                 under Section 404 of the Clean Water                     One commenter suggested that this
                                          provisional verifications until the State               Act. Several commenters recommended                   NWP should not be used to authorize
                                          or Tribe has completed its certification                adding language to clarify that                       additional or new work, fill, riprap or
                                          process; in this case, permittees are                   excavation activities, or incidental                  structures that was not part of the
                                          required to obtain individual                           fallback, do not require a section 404                original authorization. One commenter
                                          certification directly from the State or                permit. One commenter said that the                   stated that the continued maintenance,
                                          Tribe before commencing work.                           definition of ‘‘currently serviceable’’               repair, restoration, and replacement of a
                                             If a provisional NWP verification is                 should remain in the text of this NWP,                structure may represent ongoing
                                          issued, the activity is not authorized by               instead of moving it to the ‘‘Definitions’’           impacts that are more than minimal,
                                          NWP until the required water quality                    section.                                              and may preclude restoration of
                                          certification is obtained or waived. If the                Even though explicit references to                 environmental features at the project
                                          project proponent begins the work                       general conditions were removed from                  site. This commenter said that those
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                                          before water quality certification is                   its text, all general conditions, including           types of activities should require on-
                                          obtained or waived, the district engineer               those general conditions cited above, are             going mitigation. Another commenter
                                          has full authority to initiate an                       still applicable to this NWP. The terms               said that this NWP should not be
                                          enforcement action for the discharge of                 of this NWP require permittees to                     reissued, since its use results in more
                                          dredged or fill material into waters of                 deposit and retain dredged or excavated               than minimal adverse impacts to the


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                                          11102                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          aquatic environment. Another                            require minimization of the footprint of              regarding the project not causing more
                                          commenter suggested that this NWP                       the riprap. District engineers can                    than minimal changes to the flow
                                          should not authorize replacement of                     consider bioengineering on a case-by-                 characteristics of the stream, or
                                          structures and fill, and that it should be              case basis, and authorize such activities             increased flooding, instead of
                                          restricted to repair or rehabilitation                  as appropriate.                                       specifically requiring original design
                                          activities involving 50 percent or less of                 One commenter said that this NWP                   information.
                                          a structure. One commenter said that                    should not authorize the maintenance of                  The provision to require information
                                          this NWP should authorize                               bank stabilization structures that are                regarding the original design capacities
                                          modifications to older structures that                  more than 300 feet long. One                          and configurations of structures and
                                          would help improve the aquatic                          commenter suggested dividing                          other features is only applicable when
                                          environment. This commenter also                        paragraph (b) into two subparagraphs.                 maintenance dredging is proposed. We
                                          recommended replacing the use of                        One subparagraph would authorize                      believe that this information can be
                                          riprap with less environmentally                        debris and sediment removal and the                   developed fairly easily, since the
                                          damaging alternatives, such as                          other subparagraph would authorize                    capacities and configurations of the
                                          bioengineered structures.                               riprap. This commenter also indicated                 outfalls, intakes, impoundments, and
                                             This NWP does not authorize any                      that this NWP should be modified to                   canals can be developed or inferred by
                                          significant increase in the original                    limit the removal of sediment to the                  examining the existing facilities, in
                                          structure or fill. Only minor deviations                minimum necessary to ‘‘restore the bed                cases where historical documentation is
                                                                                                  of the waterway to its natural grade.’’               not available.
                                          necessary to conduct repairs and
                                                                                                     This NWP authorizes only activities                   Several commenters expressed
                                          maintenance, or the placement of the
                                                                                                  that repair or return an activity to                  opposition to the terms of the NWP that
                                          minimum necessary riprap to protect                     previously existing conditions. We do
                                          the structure, are eligible for                                                                               limit the removal of sediment to the
                                                                                                  not believe it is necessary to further                minimum necessary to restore the
                                          authorization under this NWP. Because                   restrict this NWP to limit maintenance
                                          of the nature of activities authorized by                                                                     waterway to the approximate
                                                                                                  of bank stabilization structures.
                                          this NWP, as a general rule                                                                                   dimensions that existed when the
                                                                                                  Dividing paragraph (b) into two
                                          compensatory mitigation should not be                                                                         structure was built. Another commenter
                                                                                                  subparagraphs is not needed, since the
                                          required for these maintenance                                                                                recommended changing the language to
                                                                                                  riprap is typically used to protect the
                                          activities. If a Department of the Army                                                                       require restoration of the project to its
                                                                                                  structure once the accumulated
                                          permit was required to construct the                                                                          original design conveyance capacity.
                                                                                                  sediment has been removed. The
                                          original structure or fill, appropriate                                                                          The current language is adequate to
                                                                                                  purpose of this NWP is to authorize
                                          compensatory mitigation would have                      restoring structures or fills to their                ensure that this NWP authorizes
                                          been required by the district engineer                  original condition. It may not be                     necessary sediment removal activities
                                          when the permit was issued, to offset                   possible to determine the ‘‘natural                   that result in minimal adverse effects on
                                          the loss of aquatic resource functions                  grade’’ of the waterway, and this may                 the aquatic environment. We believe
                                          and services resulting from the                         not have been the condition at the time               that the limits for the removal of
                                          authorized work. Additional                             the structure or fill was originally                  sediments should be established with
                                          compensatory mitigation is usually                      authorized. Therefore, we believe the                 regard to the conditions of the waterway
                                          unnecessary to maintain those                           current language is more appropriate.                 itself at the time of project construction
                                          structures or fills. The terms and                         Several commenters recommended                     rather than to the specifications of the
                                          conditions for NWP 3, plus any regional                 modifying this NWP to authorize both                  structures.
                                          conditions imposed by division                          permanent and temporary impacts of                       One commenter requested
                                          engineers, will ensure that this NWP                    maintenance activities, since the                     clarification as to whether the 200 foot
                                          authorizes only those activities with                   requirement to submit a pre-                          limit on the removal of accumulated
                                          minimal individual and cumulative                       construction notification for temporary               sediment is subject to the 1⁄2 acre limit
                                          adverse effects on the aquatic                          impacts would significantly increase                  found in other NWPs.
                                          environment. We believe that this NWP                   regulatory and administrative burdens                    This NWP does not have a 1⁄2 acre
                                          should continue to authorize the                        on the applicants and the Corps,                      limit. If this NWP is used with another
                                          replacement of structures or fills, or                  without any environmental benefits or                 NWP to authorize a single and complete
                                          rehabilitation activities, since those                  added value to the process.                           activity, then the activity is subject to
                                          activities usually result in minimal                       We agree, and have added a new                     the requirements of general condition
                                          adverse effects on the aquatic                          paragraph (c) to this NWP to address                  24, Use of Multiple Nationwide Permits.
                                          environment. As for modifying this                      temporary structures, fills, and work                 If this NWP is used with an NWP with
                                          NWP to authorize changes to structures                  necessary to conduct the maintenance                  a 1⁄2 acre limit, such as NWP 39, then
                                          that would improve the aquatic                          activities authorized by this NWP.                    the 1⁄2 acre limit would apply to the
                                          environment, we believe it would be                        Several commenters objected to the                 single and complete project.
                                          more appropriate for district engineers                 requirement to provide information                       One commenter requested the
                                          to authorize such changes through other                 about original design capacities and                  addition of ‘‘flood conveyance
                                          permits. Changes to structures would                    configurations of the structures and                  channels’’ to paragraph (b) of this NWP,
                                          require more thorough evaluation to                     canals as part of the pre-construction                instead of requiring the use of NWP 31.
                                          ensure that net improvements to the                     notification for the proposed activity.               Another commenter stated that
                                          aquatic environment will occur. The use                 These commenters stated that this                     additional routine maintenance
                                          of bioengineering methods to protect                    information may not exist or be readily               activities, which are authorized by
                                          existing structures may not be very                     available, particularly for old facilities            NWPs 31 and 43, should be
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                                          effective, because of the environmental                 and structures. These commenters                      consolidated under NWP 3. One
                                          conditions, such as water flows, near                   recommended that the information be                   commenter suggested adding language
                                          these structures. Riprap is usually the                 required only where it is reasonably                  to clarify that this NWP authorizes
                                          most effective means of protecting these                available. Alternatively, the commenters              emergency repairs of submarine fiber
                                          structures, and the terms of this NWP                   proposed retaining the language                       optic cables.


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11103

                                             NWP 31 is being reissued to authorize                any special aquatic site should be                       One commenter stated that pre-
                                          maintenance activities for existing flood               prohibited.                                           construction notifications should be
                                          control facilities, including flood                        Since this NWP only authorizes                     required for all NWP 3 activities to
                                          conveyance channels. Therefore, we do                   activities that restore an area to its                ensure compliance with its terms and
                                          not believe it is necessary to modify                   previous condition, we do not believe it              conditions. Another commenter stated
                                          NWP 3 to authorize those activities. We                 is appropriate to prohibit the                        that the Corps should carefully review
                                          are also reissuing NWP 43 to authorize                  maintenance of structures or fills simply             all maintenance applications to ensure
                                          maintenance activities for storm water                  because a special aquatic site may have               that the area impacted is not larger than
                                          management facilities. Emergency                        formed in these areas. District engineers             needed to complete the maintenance
                                          repairs of submarine fiber optic cables                 will review pre-construction                          activities, and that no additional
                                          may be authorized by this NWP,                          notifications to determine if the                     impacts are authorized or conducted.
                                          provided the activity meets its terms                   placement of riprap or the removal of                    We do not agree that pre-construction
                                          and conditions.                                         accumulated sediments in special                      notification should be required for all
                                             One commenter indicated that small                   aquatic sites would cause more than                   activities. The terms and conditions of
                                          sediment removal projects should not                    minimal impact, and use discretionary                 this NWP are adequate to ensure that it
                                          require pre-construction notification.                  authority to address situations where                 authorizes only those activities with
                                          Another commenter stated that pre-                      they would.                                           minimal adverse effects on the aquatic
                                          construction notification should not be                    One commenter stated that affected                 environment. Where there are concerns
                                          required for the placement of riprap to                 tribes should be informed of all pre-                 for the aquatic environment, division
                                          protect structures. A few other                         construction notifications for this NWP               engineers can regionally condition this
                                          commenters said that pre-construction                   that involve in-water work and be                     NWP to require pre-construction
                                          notification should not be required for                 provided 30 days to provide comments.                 notification or other measures.
                                          activities authorized by paragraph (b) of               This commenter also suggested that                       One commenter said that streams near
                                          this NWP. In contrast, one commenter                    while bioengineered projects are less                 roads may migrate from their original
                                          suggested that pre construction                         environmentally damaging than riprap                  location and compromise the road. This
                                          notification should be required for all                 and offer benefits to salmon, the                     commenter said that for those
                                          activities covered under NWP 3.                         presence of wood in some bank                         situations, this NWP should authorize
                                                                                                  protection structures has the potential to            relocation of the stream back to its
                                             We believe that the pre-construction
                                                                                                  interfere with treaty fishing access by               original location. The commenter also
                                          notification requirements for this NWP
                                                                                                  preventing the use of nets.                           indicated that small channel
                                          are appropriate. Pre-construction                          Coordination of proposed NWP 3                     realignments should be authorized to
                                          notification is required for those                      activities with Indian tribes is more                 properly convey the water into culverts.
                                          activities that may have the potential to               appropriately addressed through                          This NWP does not authorize new
                                          cause more than minimal adverse effects                 government-to-government                              stream channelization or stream
                                          on the aquatic environment.                             consultations with Corps districts.                   relocation projects. Those activities may
                                             One commenter recommended that                       General condition 16, Tribal Rights,                  be authorized by other Department of
                                          sediments should be sampled to project                  does not allow an activity or its                     the Army permits.
                                          depth prior to dredging, and that sandy                 operation to impair reserved tribal                      This NWP is reissued with the
                                          sediment suitable for nearshore disposal                rights, including but not limited to,                 modifications discussed above.
                                          should be returned to the littoral system               reserved water rights and treaty fishing                 NWP 4. Fish and Wildlife Harvesting,
                                          down drift of the project site.                         and hunting rights. Compliance with                   Enhancement, and Attraction Devices
                                             Regulatory Guidance Letter 06–02                     this general condition, along with                    and Activities. We proposed to remove
                                          establishes that testing of dredge                      coordination with interested Indian                   the provision for shellfish seeding, since
                                          material is not required when there is                  Tribes, will help protect tribal rights.              we proposed to modify NWP 27 to
                                          reason to believe that no contaminants                     One commenter suggested that the                   authorize this activity. No comments
                                          are present in the material. Therefore, a               placement of riprap should be the                     were received. This NWP is reissued as
                                          standard requirement to sample and test                 minimum necessary to protect the                      proposed.
                                          sediments to be dredged under NWP 3                     structure, in order to reduce adverse                    NWP 5. Scientific Measurement
                                          would not be appropriate. The                           effects to habitat-forming processes                  Devices. We proposed to remove the
                                          nearshore disposal of sandy sediments                   within waterbodies, such as salmon                    pre-construction notification
                                          should be addressed through separate                    habitat. Another commenter said that                  requirement for discharges of 10 to 25
                                          authorizations, such as individual                      this NWP should not authorize                         cubic yards for the construction of small
                                          permits, since those activities may have                maintenance work on culverts that fail                weirs and flumes, but retain the 25
                                          more than minimal adverse                               to meet appropriate standards for the                 cubic yard limit for such construction.
                                          environmental effects.                                  upstream and downstream passage of                       Several commenters supported this
                                             One commenter indicated that                         fish, or culverts that do not allow for the           NWP and the proposed removal of the
                                          significant wetland habitat development                 downstream passage of substrate and                   pre-construction notification
                                          has been observed on sediments left in                  wood.                                                 requirement on the basis that activities
                                          place for many years within canals                         The terms and conditions of this NWP               authorized under this NWP result in
                                          associated with outfall and intake                      limit the placement of riprap to the                  minimal impacts. Another commenter
                                          structures. That commenter stated that                  minimum necessary to provide adequate                 agreed with the removal of the pre-
                                          exempting maintenance activities in                     erosion protection. Other NWP general                 construction notification requirement
                                          such canals from the 200 linear foot                    conditions, such as general condition 17              for discharges of 10 to 25 cubic yards for
                                          restriction may have a significant                      for endangered species, may provide                   construction of weirs and flumes
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                                          impact on the wetland habitats in these                 additional protection for species of                  because it will facilitate the
                                          channels. Another commenter suggested                   concern, as well as their habitat. General            implementation of water quality
                                          that the placement of riprap or any other               condition 2 prohibits activities which                improvement projects sponsored by
                                          bank stabilization material in, or the                  could disrupt the necessary life cycle                Federal, State, and local agencies, as
                                          removal of accumulated sediment from,                   movements of aquatic species.                         well as the scientific community. Two


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                                          commenters objected to the removal of                   environment, and this NWP has been                    waived for each activity before it is
                                          the pre-construction notification                       conditioned to require restoration of the             authorized in that state.
                                          threshold. One commenter                                trenched area upon completion of work.                   One commenter stated the NWP
                                          recommended conditioning this NWP to                    Since most impacts associated with                    should also authorize temporary access
                                          ensure that authorized activities do not                exploratory trenches are temporary, an                roads. Such work may qualify for the
                                          interfere with the movements of                         acreage limit is not necessary. Division              404(f) exemption for temporary mining
                                          organisms within watercourses or                        engineers may impose regional                         roads or could be authorized by NWP
                                          prevent ingress or egress of aquatic                    conditions to require pre-construction                33.
                                          organisms.                                              notifications or specific limits for                     The NWP is reissued with the
                                             Based on our past experience with                    certain activities. District engineers may            modification discussed above.
                                          this NWP, we believe the removal of the                 also exercise discretionary authority and                NWP 7. Outfall Structures and
                                          pre-construction notification                           require an individual permit if a                     Associated Intake Structures. We
                                          requirement for discharges of 10 to 25                  proposed activity would result in more                proposed to move maintenance
                                          cubic yards for the construction of small               than minimal adverse effects on the                   dredging and excavation activities to
                                          weirs and flumes is appropriate. Project                aquatic environment. It is unnecessary                NWP 3. We also proposed to change the
                                          proponents are required to comply with                  to impose a 25 cubic yard limit on all                title of this NWP to more clearly
                                          all applicable general conditions,                      discharges authorized by this NWP,                    describe what it authorizes.
                                          including general condition 2, Aquatic                  since most of these discharges are                       Several commenters supported
                                          Life Movements, which prohibits                         temporary. Temporary fills must be                    moving maintenance dredging and
                                          activities from substantially disrupting                removed upon completion of the work,                  excavation activities to NWP 3, while
                                          life cycle movements of aquatic                         in accordance with the requirements of                one commenter objected to the proposed
                                          organisms. Further, we believe the                      general condition 13. Any permanent                   change. One commenter said this NWP
                                          district engineer’s authority to issue                  fills are likely to be small in size,                 should require pre-construction
                                          case-specific special conditions and to                 because of the types of activities                    notification only for section 10
                                          impose regional conditions to require                   authorized by this NWP.                               activities, since Clean Water Act
                                          pre-construction notifications for certain                 One commenter suggested adding                     authorization for these structures is
                                          activities, such as activities involving                language regarding the backfilling of the             already provided through the permit
                                          specified quantities of fills for the                   exploratory trench. Some commenters                   process under Section 402 of the Clean
                                          construction of small weirs and flumes,                 stated that the definition of ‘‘exploratory           Water Act. One commenter stated that
                                          is adequate to address local concerns                   trenching’’ should include more                       construction and maintenance of outfall
                                          regarding potential adverse effects to the              prescriptive details such as benchmarks,              structures should not include bank
                                          movement of aquatic organisms.                          width, and depth.                                     stabilization structures.
                                             One commenter said that the NWP                         We are conditioning this NWP to                       Outfall structures and associated
                                          should have a condition requiring all                   require permittees to backfill the top 6              intake structures require section 404
                                          temporary devices to be removed when                    to 12 inches of exploratory trenches                  authorization if they involve discharges
                                          the devices will no longer be used. This                constructed in wetlands with topsoil                  of dredged or fill material into waters of
                                          commenter also asked whether this                       from the trench. This change will bring               the United States. Sections 404 and 402
                                          NWP authorizes the installation of                      consistency with the terms of other                   of the Clean Water Act address different
                                          single measurement devices or multiple                  NWPs that authorize trenching                         types of discharges. In addition, the
                                          measurement devices.                                    activities. We do not believe that it is              permitting criteria under section 404
                                             The removal of temporary fills is                    necessary to include prescriptive limits              differ from those of section 402. In
                                          required by general condition 13. The                   on the trench dimensions. However,                    addition, some activities authorized by
                                          NWP authorizes single and complete                      division engineers may choose to                      this NWP may be exempt from section
                                          scientific measurement device projects.                 establish such limits through regional                402 permit requirements. The pre-
                                          Scientific measurement devices with                     conditions.                                           construction notification requirement is
                                          independent utility can be authorized                      One commenter suggested that the 25                necessary to ensure that activities
                                          by separate NWP authorizations.                         cubic yard limit for discharges                       authorized by this NWP will have no
                                             This NWP is reissued as proposed.                    associated with temporary pads should                 more than minimal adverse impacts to
                                             NWP 6. Survey Activities. We                         be removed. Another said that the 25                  the aquatic environment. Bank
                                          proposed to modify this NWP to add                      cubic yard limit should apply to the                  stabilization activities are not
                                          exploratory trenching to the list of                    cumulative amount of material for                     authorized by this NWP but may be
                                          authorized activities and to authorize                  multiple drill sites. Two commenters                  authorized by NWP 13 or other types of
                                          the construction of temporary pads used                 said that limits should be placed on the              permits.
                                          for survey activities, provided the                     amount of such discharges because a                      One commenter suggested adding a
                                          discharge does not exceed 25 cubic                      state may not issue water quality                     provision to require intake structures
                                          yards.                                                  certification for this NWP.                           constructed for withdrawing cooling
                                             Two commenters supported the                            The 25 cubic yard limit is necessary               water to adhere to requirements
                                          proposed modifications and one                          to help ensure that the NWP authorizes                contained in Section 316(b) of the Clean
                                          commenter said that the NWP would                       only activities with minimal adverse                  Water Act. Another commenter
                                          result in more than minimal impacts to                  effects on the aquatic environment. It                suggested that this NWP should include
                                          the aquatic environment. One                            also provides a suitable limit on the                 a reference to the U.S. Environmental
                                          commenter stated that there should be                   quantity of discharge necessary for                   Protection Agency’s section 316(b)
                                          a 1⁄4 acre limit for exploratory trenching.             construction of these temporary pads.                 implementation initiative and require
                                          This commenter also suggested                           The cubic yard limit for temporary pads               incorporation of Best Technology
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                                          imposing a 25 cubic yard limit on all                   applies to a single and complete project,             Available methods developed from this
                                          activities authorized by this NWP.                      as defined at 33 CFR 330.2(i). If a state             initiative. This commenter also said that
                                             It has been our experience that                      does not issue water quality certification            intake structures should utilize passive
                                          exploratory trenching results in minimal                for this NWP, an individual water                     screens with openings not to exceed one
                                          adverse effects on the aquatic                          quality certification must be obtained or             centimeter (or one millimeter in waters


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11105

                                          having anadromous fish), with a                         of the United States, then a Corps                    were received. This NWP is reissued as
                                          maximum intake velocity of 0.5 feet per                 permit is not required.                               proposed.
                                          second.                                                    One commenter recommended                             NWP 9. Structures in Fleeting and
                                             Section 316(b) of the Clean Water Act                conditioning this NWP to require intake               Anchorage Areas. There were no
                                          is implemented through (and only                        structures to be marked in a manner that              changes proposed for this NWP. One
                                          applies to) permits issued pursuant to                  will reduce hazards to navigation during              commenter said that moorage structures
                                          Section 402. Thus, any structure that is                and after construction. Another                       may preclude the continued exercise of
                                          in compliance with regulations issued                   commenter said that this NWP should                   Tribal fishing rights. This commenter
                                          under the NPDES program (Section 402)                   not authorize dredging operations                     also asked that the Corps consult with
                                          must also be in compliance with                         during fish spawning seasons. One                     Indian Tribes that utilize these areas for
                                          regulations issued under Section 316(b).                commenter said that this NWP should                   fishing, and requested that pre-
                                          Specific suggestions regarding                          prohibit the stockpiling of excavated                 construction notification be required for
                                          technology choices for intake structures                materials where sediment may erode to                 all activities authorized by this NWP.
                                          are more appropriately addressed                        surface waters. A commenter asserted                     General condition 16 states that NWP
                                          through other permit authorities, such                  this NWP should be conditioned to                     activities cannot impair reserved tribal
                                          as the 402 program. Activities                          prohibit exposure of surface waters to                rights. Division and district engineers
                                          authorized by this NWP may require                      wet concrete, which may be toxic to                   can consult with Tribes to develop
                                          other Federal, State, or local permits or               aquatic organisms.                                    regional conditions that will further
                                          licenses.                                                  General condition 1 states that any                ensure that tribal rights are not impaired
                                             One commenter suggested adding                       safety lights and signals prescribed by               by this NWP. Division engineers can
                                          modifications of existing intakes as an                 the U.S. Coast Guard, through                         regionally condition this NWP to
                                          authorized activity, for cases where                    regulations or otherwise, must be                     require coordination with Tribes when
                                          intake structure modifications are                      installed and maintained. This                        proposed activities may affect Tribal
                                                                                                  condition adequately addresses                        lands or trust resources.
                                          required by rules recently promulgated
                                                                                                  potential hazards to navigation.                         The NWP is reissued without change.
                                          under Section 316(b) of the Clean Water                                                                          NWP 10. Mooring Buoys. There were
                                                                                                  Maintenance dredging associated with
                                          Act. Another commenter recommended                                                                            no changes proposed for this NWP. One
                                                                                                  outfall structures and their intake
                                          adding a note to refer applicants to NWP                                                                      commenter stated that individual
                                                                                                  structures may be authorized by NWP 3
                                          3 for future maintenance activities.                                                                          mooring buoys can interfere with the
                                                                                                  or another type of permit. General
                                             In the first sentence of this NWP, we                condition 3 states that activities in                 exercise of Tribal fishing rights and
                                          have added the phrase ‘‘or                              spawning areas that occur during the                  should not be authorized by NWP. This
                                          modification’’ after the word                           spawning seasons must be avoided to                   commenter also said that pre-
                                          ‘‘construction. It is important to note                 the maximum extent practicable.                       construction notification should be
                                          that this NWP only authorizes the                       General condition 12 addresses                        required for all activities authorized by
                                          construction or modification of intake                  requirements for soil erosion and                     this NWP, and the Corps should consult
                                          structures that are associated with                     sediment controls. Although concrete                  with Indian Tribes with usual and
                                          outfall structures. This would include                  may be toxic under certain                            accustomed fishing grounds. Another
                                          cooling water intake structures where                   circumstances, it is generally not                    commenter suggested limiting mooring
                                          the heated cooling water is subsequently                considered to have toxic pollutants                   buoys to areas outside of Federal
                                          discharged back into the waterbody                      present in toxic amounts. Therefore, its              navigation channel or dredged material
                                          from which is was withdrawn. Adding                     use is not generally prohibited by                    placement areas.
                                          a note referencing NWP 3 for future                     general condition 6, Suitable Materials.                 General condition 16 states that NWP
                                          maintenance activities is inappropriate,                   One commenter said that agency                     activities cannot impair reserved tribal
                                          since there may be outfall structure                    coordination should be required for the               rights. Division and district engineers
                                          maintenance activities that do not                      construction of intake structures,                    can consult with Tribes to develop
                                          qualify for NWP 3 authorization.                        because those structures may impinge                  regional conditions that will ensure that
                                             One commenter requested                              and entrain larval fish.                              tribal fishing rights are not impaired by
                                          clarification that this NWP authorizes                     We do not believe it is necessary to               activities authorized by this NWP.
                                          only those activities that require permits              require agency coordination for the                   District and division engineers will
                                          under Section 404 of the Clean Water                    construction of intake structures. For                consider the need to add regional
                                          Act and/or Section 10 of the Rivers and                 cooling water intake structures, this                 conditions or case-specific conditions
                                          Harbors Act of 1899. This commenter                     issue is already addressed by the                     where necessary to protect tribal rights.
                                          said that the current text of this NWP                  Section 402 program. For other types of               Prohibiting the placement of mooring
                                          indicates that all outfall and associated               intakes, it would be more appropriate to              buoys in Federal navigation channels or
                                          intake structures that require section                  address concerns regarding the                        dredged material placement areas is not
                                          402 permits would also require an NWP                   impingement and entrainment of larval                 desirable. There are occasions where it
                                          authorization.                                          fish through regional conditions or                   may be appropriate to place mooring
                                             This NWP authorizes outfall                          special conditions. Division and district             buoys in these areas on a permanent or
                                          structures and associated intake                        engineers, in consultation with resource              temporary basis, where the adverse
                                          structures that require authorization                   agencies, can develop species-specific                effects on navigation and other public
                                          under Section 404 of the Clean Water                    regional or special conditions to protect             interest review factors are minimal.
                                          Act and/or Section 10 of the Rivers and                 larval fish.                                          Mooring buoys authorized by this NWP
                                          Harbors Act of 1899. If the construction                   This NWP is reissued with the                      must comply with general condition 1,
                                          or modification of an outfall structure or              modification discussed above.                         Navigation. Division engineers may also
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                                          associated intake structure that requires                  NWP 8. Oil and Gas Structures on the               add regional conditions to this NWP to
                                          a section 402 permit does not involve                   Outer Continental Shelf. We proposed                  prohibit the placement of mooring
                                          discharges of dredged or fill material                  to clarify that pre-construction                      buoys in certain Federal navigation
                                          into waters of the United States or                     notification is required for all activities           channels or other areas of concern.
                                          structures or work in navigable waters                  authorized by this NWP. No comments                      The NWP is reissued without change.


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                                          11106                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                             NWP 11. Temporary Recreational                       for temporary sidecasting, and the other              consistent terminology for the NWPs.
                                          Structures. There were no changes                       commenter recommended a time limit                    Several commenters said that the 1⁄10
                                          proposed for this NWP. One commenter                    of 30 days. One commenter said that                   acre pre-construction notification
                                          suggested that temporary buoys,                         this NWP should require all trenched                  threshold for temporary losses should
                                          markers, small floating docks, and                      material to be returned to the trench as              be eliminated, because it is not
                                          similar structures can interfere with the               backfill, not just the upper 6 to 12                  necessary to ensure minimal adverse
                                          exercise of treaty fishing access and,                  inches, to sustain groundwater                        effects and it is not consistent with the
                                          therefore, in an area subject to treaty                 hydrology and prevent drainage of                     pre-construction notification thresholds
                                          fishing, notification to affected tribes is             wetlands and other waters of the United               of other NWPs. One commenter
                                          required. The commenter further stated                  States. One commenter requested that                  indicated that the pre-construction
                                          that regional conditions should be                      total impacts at the site be limited to 3⁄10          notification threshold for temporary
                                          added to require that such structures                   acre.                                                 losses would result in a dramatic
                                          shall be removed from salmon spawning                      This NWP authorizes the relocation of              increase in the numbers of pre-
                                          areas prior to commencement of the                      utility lines, which is covered by the                construction notifications submitted to
                                          spawning season. Another commenter                      construction, maintenance, and repair                 the Corps. Another commenter stated
                                          suggested that temporary recreation                     activities authorized by this NWP. We                 that this pre-construction notification
                                          structures may come into conflict with                  believe that three months is an                       threshold would remove incentives for
                                          Tribal fisheries and that pre-                          appropriate time frame for temporary                  project proponents to minimize
                                          construction notification should be                     sidecasting of excavated material into                temporary impacts. Several commenters
                                          required. In addition, consultation with                waters of the United States. Division                 said that requiring pre-construction
                                          Indian Tribes with usual and                            engineers can regionally condition this               notifications for temporary losses
                                          accustomed fishing grounds in the area                  NWP to reduce the authorized period of                greater than 1⁄10 acre would increase the
                                          should also be conducted.                               temporary sidecasting, to further ensure              number of wetland delineations
                                             This NWP cannot authorize any                        minimal adverse effects. In response to               required to be submitted with those
                                          activity that may impair reserved tribal                a pre-construction notification, district             notifications.
                                          rights, including, but not limited to,                  engineers can add special conditions to                  One commenter asked if an activity
                                          reserved water rights and treaty fishing                the NWP authorization to reduce the                   resulting in impacts of 1⁄10 acre or less
                                          and hunting rights (see general                         length of time temporary sidecasting is               to special aquatic sites, including
                                          condition 16). District and division                    authorized. We do not agree that it is                wetlands, would require pre-
                                          engineers will consider the need to add                 necessary to require that all trenched                construction notification. Another
                                          regional conditions or case-specific                    material be returned to the trench to                 commenter said that there may be utility
                                          conditions where necessary to protect                   maintain pre-construction hydrology.                  line activities resulting in the loss of
                                          such tribal rights.                                     The NWP explicitly prohibits                          less than 1⁄10 acre that may result in
                                             One commenter recommended                            backfilling the trench in a manner that               more than minimal adverse effects on
                                          conditioning the NWP to require                         would result in a french drain effect,                the aquatic environment. One
                                          temporary recreation structures to be                   and drain nearby waters. We believe the               commenter objected to the removal of
                                          removed within seven days after the use                 1/2 acre limit for this NWP is sufficient             the pre-construction notification
                                          has been discontinued, instead of the 30                to ensure that it authorizes only those               requirement for activities that include
                                          days specified in the NWP. One                          activities that result in minimal                     mechanized landclearing of forested
                                          commenter asserted that the required                    individual and cumulative adverse                     wetlands, stating that this may result in
                                          approval from the reservoir manager                     effects on the aquatic environment. This              significant habitat loss of forested
                                          should be in writing.                                   limit applies to the total discharges                 wetlands and a significant permanent
                                             Shorter time periods for removal can                 associated with the single and complete               loss of forested wetland functions. One
                                          be imposed through regional                             project.                                              commenter recommended requiring pre-
                                          conditioning, or through special                           Several commenters supported the                   construction notifications for activities
                                          conditions provided in NWP                              proposed pre-construction notification                that may impact fish passage.
                                          verifications. The process for approving                thresholds for this NWP, stating that                    We are restoring the pre-construction
                                          buoys or markers at Corps of Engineers                  they are simpler than the current                     notification thresholds that were in the
                                          reservoirs is at the discretion of the                  thresholds and would capture many of                  NWP 12 issued in 2002, so that district
                                          reservoir manager.                                      those utility line activities that required           engineers will be able to conduct case-
                                             The NWP is reissued without change.                  pre-construction notification under the               by-case review for certain utility line
                                             NWP 12. Utility Line Activities. We                  2002 NWP. A couple of commenters                      activities that have the potential to
                                          proposed to modify this NWP by                          recommended retaining the pre-                        result in more than minimal adverse
                                          removing the provisions authorizing the                 construction notification thresholds of               effects on the aquatic environment. Pre-
                                          construction of permanent and                           the NWP 12 issued in 2002. A number                   construction notification will be
                                          temporary access roads and simplifying                  of commenters said that the pre-                      required if any of the following criteria
                                          the pre-construction notification                       construction notification for temporary               are met: (1) The activity involves
                                          thresholds. Several commenters                          losses of greater than 1⁄10 acre of water             mechanized land clearing in a forested
                                          supported all proposed changes to this                  of the United States should be                        wetland for the utility line right-of-way;
                                          NWP.                                                    eliminated. Some of these commenters                  (2) a section 10 permit is required; (3)
                                             One commenter recommended                            stated that this pre-construction                     the utility line in waters of the United
                                          modifying this NWP to explicitly                        notification threshold is confusing,                  States, excluding overhead lines,
                                          include utility line relocation, in                     because it is not consistent with the                 exceeds 500 feet; (4) the utility line is
                                          addition to utility line construction,                  definition of ‘‘loss of waters of the                 placed within a jurisdictional area (i.e.,
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                                          maintenance, and repair. Two                            United States.’’ Other commenters                     water of the United States), and it runs
                                          commenters suggested reducing the                       recommended changing the phrasing of                  parallel to a stream bed that is within
                                          authorized duration of temporary                        this pre-construction notification                    that jurisdictional area; (5) discharges
                                          sidecasting. One of these commenters                    threshold from ‘‘temporary loss’’ to                  that result in the loss of greater than 1⁄10-
                                          said that four weeks is sufficient time                 ‘‘temporary impact’’ to provide                       acre of waters of the United States; (6)


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                               11107

                                          permanent access roads are constructed                  authorization of permanent access roads               A similar reference to the 1⁄2 acre limit
                                          above grade in waters of the United                     through NWP 14 could result in impacts                is also provided in the paragraph
                                          States for a distance of more than 500                  greater than 1⁄2 acre at the site of a single         authorizing access roads. Mitigation
                                          feet; or (7) permanent access roads are                 and complete project. One commenter                   requirements for this NWP will be
                                          constructed in waters of the United                     said that utility line substations should             established in accordance with general
                                          States with impervious materials.                       be authorized by another NWP, because                 condition 20, Mitigation. This general
                                          Discharges resulting in temporary losses                these facilities can be constructed at a              condition states that mitigation banks
                                          of waters only will no longer trigger a                 more distant location from the utility                may be used to provide compensatory
                                          pre-construction notification                           line.                                                 mitigation for activities authorized by
                                          requirement, unless they trigger one of                    After considering these comments, as               NWPs.
                                          the criteria above.                                     well as the probable negative effects that               One commenter suggested adding
                                             Division engineers can regionally                    this proposed change would have on                    language to this NWP that would
                                          condition this NWP to require pre-                      essential services such as the                        require sand and gravel excavated from
                                          construction notification for other                     distribution of energy to the public, we              a lake bed during trench excavation to
                                          utility line activities, if there are                   have decided to retain authorization of               be temporarily sidecast in a manner
                                          concerns for the aquatic environment or                 permanent and temporary access roads                  such that it would not be buried by
                                          public interest that warrant lower pre-                 in NWP 12. We have added a paragraph                  material with finer grain sizes. Another
                                          construction notification thresholds,                   to authorize access roads, using                      commenter stated that this NWP should
                                          such as endangered or threatened                        language from the NWP 12 issued in                    not be used to authorize utility line
                                          species, or impacts to forested wetlands.               2002. We are also putting Note 2 back                 activities in streams that support
                                          General condition 2, Aquatic Life                       into this NWP. This note states that                  salmon.
                                          Movements, requires permittees to not                   access roads used for both construction                  Concerns for potential impacts to lake
                                          disrupt necessary life cycle movements                  and maintenance are authorized by this                substrate are more appropriately
                                          of aquatic organisms, such as fish.                     NWP. This note has been adapted from                  addressed through either the special
                                             Several commenters requested that                    the NWP 12 issued in 2002, but revised                conditions added to an NWP
                                          the definition of single and complete                   to clarify that temporary access roads                authorization by the district engineer, or
                                          project, as applied to utility line                     may be authorized by NWP 12, provided                 by regional conditioning of the NWP by
                                          projects, be modified to state that the                 the area is restored to pre-construction              division engineers. Potential impacts to
                                          1⁄10 acre pre-construction notification                                                                       salmon are also more appropriately
                                                                                                  elevations and revegetated as
                                          threshold applies to the entire utility                 appropriate. To address concerns about                addressed through regional conditions
                                          line and not to each separate water or                  temporary impacts to waters of the                    or the review of pre-construction
                                          wetland crossing.                                       United States associated with utility                 notifications, including the district
                                             The requirement to submit a pre-                     line activities, we are adding explicit               engineer’s use of discretionary authority
                                          construction notification for those                     requirements to remove all temporary                  and the addition of special conditions to
                                          utility line activities listed in the                   fills in their entirety, return affected              the NWP authorization.
                                          ‘‘Notification’’ paragraph of this NWP                  areas to pre-construction elevations, and                One commenter said that this NWP
                                          applies to a single and complete project,               revegetate affected areas as appropriate.             should be conditioned to require
                                          as defined at 33 CFR 330.2(i). In the case                 The 1⁄2 acre limit for this NWP applies            placement of the utility line in the right-
                                          of a utility line, a single and complete                to each single and complete utility line              of-way of existing or proposed roads or
                                          project consists of a single crossing of a              activity. There are not separate acreage              at the narrowest section of wetlands or
                                          water of the United States, or more than                limits for utility lines and access roads.            streams. This commenter also stated
                                          one crossing at the same location (see                  Retaining authorization of access roads               that the number of stream crossings
                                          the definition of ‘‘single and complete                 in this NWP, as well as authorization for             should be limited to the minimum
                                          project’’).                                             utility line substations, will help                   necessary.
                                             Several commenters expressed                         provide effective authorization for                      These concerns are addressed by
                                          opposition to the proposed removal of                   utility line activities.                              general condition 20, Mitigation, which
                                          access roads from this NWP, especially                     One commenter recommended                          requires avoidance and minimization on
                                          the construction of temporary access                    reformatting this NWP to be consistent                the project site to the maximum extent
                                          roads, which would require                              with other NWPs. Another commenter                    practicable. It is not appropriate to
                                          authorization under NWP 33 and                          suggested that the phrase ‘‘provided the              condition this NWP to require utility
                                          require pre-construction notification for               activity does not result in the loss of               lines to be placed in existing rights-of-
                                          all activities. One commenter supported                 greater than 1⁄2 acre of those waters’’ be            way or at the narrowest sections of
                                          the use of NWPs 14 and 33 for utility                   deleted, since the 1⁄2 acre limit is                  waters of the United States. Often it is
                                          line access roads, because it would                     indicated in the first paragraph of this              not feasible to limit utility lines to these
                                          provide greater flexibility in the                      NWP. One commenter said that                          areas, and practicable alternatives are
                                          locations where these roads could be                    mitigation should be required for all                 usually rather limited. Many utility
                                          built. Most of these commenters                         NWP activities. Another commenter                     lines need to be installed in areas
                                          expressed concern that requiring pre-                   stated that the NWP should clarify that               without roads.
                                          construction notification for all                       mitigation banks may be used to provide                  One commenter said that this NWP
                                          temporary access road construction                      compensatory mitigation for permanent                 should require communication or power
                                          activities will significantly increase the              adverse effects authorized by this NWP.               poles to be upgraded to current
                                          regulatory burdens on permittees and                       The format of this NWP need not be                 standards to avoid detrimental impacts
                                          most likely cause substantial delays in                 consistent with the other NWPs,                       to migratory birds. This commenter also
                                          utility line projects. One commenter                    because of the authorized activities. We              stated that this NWP should not
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                                          said that access roads should be                        are retaining the reference to the 1⁄2 acre           authorize wind generating turbines.
                                          retained in this NWP, with a 1⁄2 acre                   limit in the paragraph that authorizes                   Design requirements for
                                          limit for the utility lines and a 1⁄2 acre              utility line substations, to make it clear            communication or power poles relative
                                          limit for the access road. Several                      that any losses associated with this                  to migratory birds are more
                                          commenters stated that requiring                        activity are included in the 1⁄2 acre limit.          appropriately addressed through other


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                                          11108                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          regulatory programs. Wind generating                    NWP should not authorize impacts to                      Several commenters stated that pre-
                                          turbines are not considered to be utility               special aquatic sites. One commenter                  construction notification should be
                                          lines. To the extent that the construction              recommended requiring a written                       required for all activities authorized by
                                          of wind generating turbines requires                    waiver from the district engineer to                  this NWP. One commenter suggested
                                          Department of the Army authorization,                   authorize discharges of dredged or fill               adding language to clarify that any
                                          those activities may be authorized by                   material into special aquatic sites. A few            requests for waivers of limits for this
                                          individual permits, regional general                    commenters said that mitigation should                NWP would be approved or denied
                                          permits, or other NWPs (e.g., NWP 25).                  always be required for activities                     during the 45-day pre-construction
                                             NWP 12 is reissued with the                          authorized by this NWP.                               notification review period. Another
                                          modifications discussed above.                             This NWP can be used to authorize                  commenter requested that additional
                                             NWP 13. Bank Stabilization. We                       bank stabilization activities in all waters           language be added to the text of the
                                          proposed to modify this NWP to                          of the United States, including rivers,               NWP to clarify that bank stabilization
                                          authorize bank stabilization activities in              streams, and coastal areas. We do not                 activities are authorized unless
                                          special aquatic sites, provided the                     believe it is necessary to modify the text            prohibited by the district engineer
                                          prospective permittee submits a pre-                    of this NWP to list the types of                      following review of the pre-construction
                                          construction notification.                              waterbodies in which it can be used.                  notification.
                                             Several commenters expressed                                                                                  We do not agree that it is necessary
                                                                                                  Because many streams include or are
                                          support for the proposed changes to this                                                                      to require pre-construction notification
                                                                                                  bordered by special aquatic sites,
                                          NWP. Several commenters stated that                                                                           for all activities authorized by this
                                                                                                  precluding use of this permit in these
                                          this NWP will result in more than                                                                             NWP. Many small bank stabilization
                                                                                                  areas significantly limits its usefulness.
                                          minimal adverse effects to the aquatic                                                                        activities are conducted each year that
                                                                                                  It may be beneficial to watersheds to
                                          environment, particularly for headwater                                                                       result in minimal adverse effects on the
                                                                                                  stabilize eroding banks, even though
                                          streams, and that individual permits                                                                          aquatic environment. We have modified
                                                                                                  small amounts of fringe wetlands or
                                          should be required for these activities.                                                                      paragraph (a)(2) of general condition 27
                                                                                                  mudflats may be impacted by a bank
                                          Other commenters stated that the linear                                                                       to clarify that NWP activities that
                                          limits of this NWP should be reduced                    stabilization activity. Therefore, bank
                                                                                                  stabilization activities involving                    require written waivers of limits are not
                                          and that the waivers to the linear foot                                                                       authorized unless the district engineer
                                          and cubic yard limits should be                         discharges of dredged or fill material
                                                                                                  into special aquatic sites may be                     issues the written waiver. In other
                                          removed to ensure that the NWP                                                                                words, a default NWP authorization
                                          authorizes only those activities with                   authorized by this NWP but pre-
                                                                                                                                                        does not occur after 45 days if the
                                          minimal adverse effects on the aquatic                  construction notification is required for
                                                                                                                                                        proposed activity requires a written
                                          environment. Several commenters                         all such activities, which will provide
                                                                                                                                                        waiver. The modification to general
                                          stated that bank stabilization projects in              an opportunity for the district engineer
                                                                                                                                                        condition 27 is sufficient to address this
                                          excess of 500 feet or involving more                    to review those activities to ensure that
                                                                                                                                                        concern, and it is not necessary to
                                          than one cubic yard per running foot                    any adverse effects on the aquatic
                                                                                                                                                        modify the text of this NWP. In the case
                                          should be evaluated as individual                       environment are minimal. For
                                                                                                                                                        of this NWP, all activities that require a
                                          permits, with opportunity for public                    additional assurance, we have added a
                                                                                                                                                        pre-construction notification also
                                          review.                                                 new paragraph (d) to require a written
                                                                                                                                                        require a written waiver. The Corps will
                                             The terms and conditions of this                     waiver from the district engineer if the              do its best to process requests for such
                                          NWP, especially the pre-construction                    activity involves discharges of dredged               waivers within 45 days.
                                          notification requirements, will help                    or fill material into special aquatic sites.             One commenter stated that this NWP
                                          ensure that this NWP authorizes only                    If a written waiver is not issued by the              should not be used to authorize bank
                                          those activities that result in minimal                 district engineer, then this NWP does                 stabilization activities in waters of the
                                          individual and cumulative adverse                       not authorize such discharges. In                     United States inhabited by anadromous
                                          effects on the aquatic environment. The                 response to a pre-construction                        fish. One commenter stated that use of
                                          500 linear foot and the one cubic yard                  notification, the district engineer will              wood in bank stabilization projects may
                                          limits must be waived in writing by the                 exercise discretionary authority if the               interfere with tribal rights, such as
                                          district engineer, or the NWP cannot be                 proposed bank stabilization activity is               treaty fishing access, and therefore
                                          used to authorize activities that exceed                in a special aquatic site and will result             affected tribes should be notified of
                                          these limits. Bank stabilization activities             in more than minimal adverse effects on               requests to use this NWP. Several
                                          are often necessary to help protect                     the aquatic environment. Division                     commenters said interagency
                                          property, as well as water quality. In                  engineers may also regionally condition               coordination should be conducted on all
                                          response to a pre-construction                          this NWP to prohibit discharges of                    NWP 13 pre-construction notifications.
                                          notification the district engineer can                  dredged or fill material into special                    Division engineers can regionally
                                          add special conditions to the NWP                       aquatic sites, where there are concerns               condition this NWP to restrict or
                                          authorization to ensure minimal adverse                 for the aquatic environment or other                  prohibit its use in waters inhabited by
                                          effects, or exercise discretionary                      public interest review factors.                       anadromous fish. General condition 16,
                                          authority and require another type of                      We do not believe compensatory                     Tribal Rights, states that activities
                                          permit, such as an individual permit, for               mitigation should be required for all                 authorized by NWP cannot impair
                                          the activity. Division engineers can                    bank stabilization activities. In cases               reserved treaty rights. Division and
                                          regionally condition this NWP to protect                where the bank stabilization activity                 district engineers should consult with
                                          high value waters and other important                   affects a special aquatic site, it may be             Tribes to develop regional conditions
                                          resources.                                              appropriate for the district engineer to              where necessary to ensure that tribal
                                             One commenter recommended                            require compensatory mitigation. For                  rights are adequately protected by this
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                                          modifying the text of this NWP to clarify               bank stabilization activities in other                NWP. Division engineers can regionally
                                          that authorized activities are not limited              waters of the United States, the district             condition this NWP to require
                                          to rivers and streams, but that this NWP                engineer may determine that it is not                 coordination with Tribes when
                                          can also be used in coastal areas.                      necessary to require compensatory                     proposed NWP activities may affect
                                          Several commenters stated that this                     mitigation.                                           Tribal lands or trust resources. General


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11109

                                          condition 27, Pre-Construction                          substantially reduces natural stream                     The cubic yard limit for this NWP,
                                          Notification, sets out the requirements                 functions, while bank stabilization by                along with the waiver provision, is
                                          and procedures for interagency                          itself does not.                                      adequate to provide flexibility while
                                          coordination for all NWPs; we do not                       We do not agree that this NWP should               protecting the aquatic environment and
                                          believe additional requirements are                     be limited to vegetative or                           ensuring that authorized activities result
                                          necessary for this permit.                              bioengineering techniques. In many                    in minimal adverse effects. We are
                                             A number of commenters requested                     areas, those techniques will not provide              retaining the language in paragraph (a),
                                          clarification as to whether the linear and              adequate protection to the bank,                      to help protect water quality. Bank
                                          running foot limits in this NWP are                     especially in those waters where banks                stabilization projects involving the
                                          applicable to the length of the bank or                 are subjected to substantial wave                     installation of plant materials on riprap
                                          the length of the stream channel.                       energy, such as coastal shorelines. In                may be authorized by this NWP, but
                                          Several commenters stated that the                      those areas, hard bank stabilization                  erodible materials should be properly
                                          prohibition against stream                              techniques may be the only feasible                   stabilized within the riprap or stabilized
                                          channelization should be retained,                      option. The pre-construction                          by other means. This NWP can be used
                                          while others recommended that it be                     notification requirements in this permit              with other NWPs to authorize single and
                                          removed because many bank                               apply to specific situations not directly             complete projects that result in minimal
                                          stabilization activities could be                       related to the type of bank stabilization             individual and cumulative adverse
                                          considered stream channelization                        used (e.g., hard or vegetative). We do                effects on the aquatic environment,
                                          projects. One commenter stated that this                not believe that the use of bank                      provided the permittee complies with
                                          NWP should not be used to authorize                     hardening methods, in and of itself,                  general condition 24, Use of Multiple
                                          hardening of bank surfaces. A number of                 requires a pre-construction notification,             Nationwide Permits. General condition
                                          commenters also stated NWP 13 should                    nor do we believe that pre-construction               6, Suitable Material, addresses the use
                                          only authorize vegetative or                            notification requirements should be                   of suitable material for discharges of
                                          bioengineered stabilization methods and                 waived simply because a project that                  dredged or fill material into waters of
                                          not bank hardening methods. One                         exceeds the 500 foot or one cubic yard                the United States. This general
                                          commenter recommended modifying                         limit, or that involves discharges into               condition prohibits the use of materials
                                          this NWP to encourage bioengineered                     special aquatic sites, uses vegetative or             that contain toxic pollutants in toxic
                                          methods, or placement of riprap above                   bioengineering techniques. However, for               amounts. We have modified paragraph
                                          the ordinary high water mark or high                    such projects, the use of more                        (e) by replacing the word ‘‘wetland’’
                                          tide line, by not requiring pre-                                                                              with ‘‘water of the United States’’ to
                                                                                                  environmentally friendly methods may
                                          construction notification for such                                                                            help ensure that surface water flows are
                                                                                                  well be a factor in the district engineer’s
                                          activities. Two commenters said that                                                                          maintained.
                                                                                                  decision regarding whether or not to
                                          this NWP should be limited to                                                                                    This NWP is reissued with the
                                                                                                  grant the requested waiver.
                                          bioengineering, living shoreline, or                                                                          modifications discussed above.
                                          vegetative bank stabilization techniques,                  One commenter suggested that in                       NWP 14. Linear Transportation
                                          and that individual permits should be                   order to make the one cubic yard per                  Projects. We proposed to modify this
                                          required for bank stabilization activities              running foot limit more practical for                 NWP to limit stream channel
                                          involving the placement of rip-rap and                  bank construction methods in streams of               modifications to the minimum
                                          other hard armoring techniques.                         significant size, this limit should only              necessary to protect the linear
                                             The linear foot and cubic yard limits                apply to the amount of material placed                transportation project and state that the
                                          apply to the length of the bank. We have                from the ordinary high water mark to                  NWP does not authorize temporary
                                          modified paragraph (b) of this NWP to                   the streambed, and not to anything                    construction, access, and dewatering
                                          clarify that the 500 linear foot limit                  below or above those planes.                          activities necessary to construct the
                                          applies to the length of the bank                       Alternatively, the commenter suggested                linear transportation project.
                                          stabilization activity, not the length of               that this limit could be adjusted to                     Several commenters supported our
                                          the stream segment. We are retaining                    increase proportionally with increasing               proposal to change the first sentence of
                                          paragraph (g), since stream                             channel depth at the ordinary high                    this NWP to refer to ‘‘linear
                                          channelization activities may result in                 water mark, so that stream magnitude is               transportation projects’’ instead of
                                          more than minimal adverse effects on                    taken into account. One commenter                     ‘‘linear transportation crossings.’’ One
                                          the aquatic environment. Bank                           indicated that the language limiting the              commenter said that this sentence
                                          stabilization activities differ from stream             placement of erodible material may                    should be consistent with the definition
                                          channelization activities in several                    discourage plantings on riprap, since                 of ‘‘single and complete project.’’
                                          ways. Bank stabilization reduces or                     the soil used for those plantings could                  We are retaining the proposed
                                          eliminates erosion to prevent the loss of               be washed away during high flows. One                 language in the first sentence of this
                                          structures or adjacent property, and                    commenter said that NWP 13 should not                 NWP. However, in the case of linear
                                          typically only one side of a stream is                  be used with other permits. Another                   transportation projects, a ‘‘single and
                                          stabilized. The location and cross-                     commenter suggested that this NWP be                  complete project’’ consists of a single
                                          section shape of the waterway is                        conditioned to prohibit the use of waste              crossing of a water of the United States,
                                          generally unaffected except for material                concrete for bank stabilization material,             or more than one crossing at the same
                                          placed along the stabilized bank. Stream                since it may adversely affect the                     location (see the definition of ‘‘single
                                          channelization alters the length,                       environment. One commenter                            and complete project’’).
                                          location, and/or cross section shape of                 recommended modifying paragraph (d)                      One commenter recommended
                                          a stream channel. Stream channelization                 (now designated as paragraph (e)) to                  reducing the acreage limit to 1⁄3 acre.
                                          changes the hydraulic flow                              state that the placement of material may              One commenter said that this NWP
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                                          characteristics of the stream, reduces                  not impair surface water flow into or out             should not be used in tidal waters.
                                          channel complexity and diversity, and                   of any water of the United States. In the             Another commenter stated there should
                                          can include bank stabilization on one or                September 26, 2006, Federal Register                  be a condition requiring culverts to
                                          both banks of the channelized                           notice, this paragraph referred only to               allow for unimpeded upstream and
                                          waterway. Stream channelization                         wetlands.                                             downstream passage of fish as well as


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                                          11110                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          the passage of substrate and wood                       individual and cumulative adverse                     to the minimum necessary to construct
                                          expected to be carried by 100 year flow                 effects on the aquatic environment. It                or protect linear transportation projects.
                                          events.                                                 does not prohibit new projects simply                 One commenter objected to the
                                             We do not agree that it is necessary                 because there may be future                           proposal, stating that it would limit
                                          to reduce the acreage limit to 1⁄3 acre for             development activities. It would be                   public transportation safety
                                          all activities authorized by this NWP.                  impractical to condition use of this                  requirements by adding unnecessary
                                          The 1⁄2 acre limit for losses of non-tidal              NWP on consideration of hypothetical                  restrictions.
                                          waters and the 1⁄3 acre limit for losses                effects of potential future activities.                  Storm water management features are
                                          of tidal waters, in addition to the pre-                Such effects will be addressed through                authorized by this NWP, provided they
                                          construction notification requirements                  applicable permitting requirements if                 are integral features of the linear
                                          and other general conditions, will                      and when future activities are proposed.              transportation project. If they are not,
                                          ensure that this NWP authorizes linear                     The acreage-based pre-construction                 then they may be authorized by NWP
                                          transportation projects that result in                  notification threshold applies only to                43, regional general permits, or
                                          minimal adverse effects on the aquatic                  permanent losses of waters of the                     individual permits. Stream channel
                                          environment. General condition 2,                       United States. However, pre-                          modifications are authorized by this
                                          Aquatic Life Movements, states that no                  construction notification is also                     NWP provided they are minimized and
                                          activity may disrupt the necessary life                 required for any discharges of dredged                conducted in the immediate vicinity of
                                          cycle movements of aquatic species,                     or fill material into special aquatic sites,          the project. Otherwise, they require
                                          including those species that normally                   whether those discharges are permanent                authorization under another NWP, a
                                          migrate through the area. General                       or temporary.                                         regional general permit, or an individual
                                          condition 9, Management of Water                           One commenter stated that this NWP                 permit. This provision allows most
                                          Flows, states that, to the maximum                      should not authorize bridge footings,                 linear transportation projects to use this
                                          extent practicable, the activity must not               because they result in a significant                  NWP while ensuring that they result in
                                          restrict or impede the passage of normal                impact to stream habitat and that edge                minimal adverse effects on the aquatic
                                          or high flows, unless the primary                       habitat is lost to hardened banks. One                environment.
                                          purpose is to impound water.                            commenter asked whether this NWP                         Two commenters requested further
                                             A large number of commenters                         authorizes cul-de-sacs and hammerhead                 clarification on the meaning of the
                                          objecting to the removal of the language                turnarounds.                                          phrase ‘‘minimum necessary.’’ Another
                                          regarding authorization of temporary                       Bridge footings are necessary to                   commenter recommended modifying
                                          construction, access, and dewatering                    construct certain types of linear                     this NWP to require these activities to
                                          activities necessary to construct the                   transportation projects, and they usually             result in no changes to the course or
                                          linear transportation project, because                  result in minimal adverse effects on the              hydrology of streams.
                                          NWP 33 requires pre-construction                        aquatic environment. The pre-                            The phrase ‘‘minimum necessary’’
                                          notification for all activities. One                    construction notification thresholds for              refers to minimizing the loss of waters
                                          commenter suggested that the Corps                      this NWP will ensure that district                    of the United States needed to protect
                                          expressly state that all activities                     engineers will review those activities                the project. This is determined based on
                                          authorized previously under this NWP                    with bridge footings that have the                    case specific circumstances such as the
                                          remain authorized.                                      potential to result in more than minimal              environmental setting and the nature of
                                             We have decided not to remove the                    adverse effects on the aquatic                        the project. General condition 9,
                                          language authorizing the temporary                      environment. Bridge footings are                      Management of Water Flows, requires
                                          construction, access, and dewatering                    generally confined to narrow stream                   maintenance of the course, condition,
                                          activities from this NWP. In addition,                  segments, so only small amounts of edge               capacity, and location of open waters,
                                          we have added a new paragraph to this                   habitat will be lost as a result of the               such as streams, to the maximum extent
                                          NWP to help ensure that temporary                       construction of a bridge footing. In                  practicable. The construction of linear
                                          impacts associated with NWP 14                          addition general condition 3, Spawning                transportation projects over streams
                                          activities are minimized, and that                      Areas, prohibits the physical                         usually results in some unavoidable
                                          temporary fills are removed and affected                destruction of important spawning areas               changes to stream morphology, but the
                                          areas are returned to pre-construction                  that could result from these activities.              conditions of the NWP authorization
                                          elevations and revegetated as                           Discretionary authority will be asserted              require such impacts to be minimized to
                                          appropriate.                                            in those cases where the construction of              the maximum extent practicable.
                                             One commenter said that this NWP                     bridge footings will result in more than                 Three commenters recommended
                                          should not authorize the construction of                minimal individual and cumulative                     adding a 300 linear foot limit to this
                                          new transportation or spur projects,                    adverse effects on the aquatic                        NWP, and another commenter suggested
                                          because potential future development                    environment. Cul-de-sacs and                          a 2,000 linear foot limit. One commenter
                                          activities might occur after the                        hammerhead turnarounds may be                         recommended a 200 linear foot limit.
                                          transportation project is constructed.                  authorized by this NWP, as they are part                 This NWP does not have a linear foot
                                          One commenter stated that the NWP                       of the street network used for                        limit for stream bed impacts. Instead,
                                          should be applicable only to the                        transportation.                                       the acreage limits for this NWP are
                                          expansion, modification or                                 Another commenter recommended                      sufficient to ensure that this NWP
                                          improvement of existing linear                          adding storm water management                         authorizes only those activities that
                                          transportation projects. One commenter                  features to the list of examples of                   result in minimal individual and
                                          recommended modifying the pre-                          activities authorized by this NWP. One                cumulative adverse effects on the
                                          construction notification thresholds to                 commenter requested clarification as to               aquatic environment. A 200 linear-foot
                                          clarify whether temporary losses require                whether stream modifications,                         limit was previously removed from
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                                          pre-construction notification.                          encroachments, and relocations                        NWP 14 to eliminate varied
                                             This NWP authorizes the                              associated with highway construction                  interpretations and to simplify the basis
                                          construction, expansion, modification,                  are authorized. We received several                   for use of the permit.
                                          or improvement of linear transportation                 comments on the proposed language                        This NWP is reissued with the
                                          projects that result in minimal                         limiting stream channel modifications                 modifications discussed above.


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11111

                                             NWP 15. U.S. Coast Guard Approved                       Return water from upland contained                 activities authorized by this NWP are
                                          Bridges. There were no changes                          disposal areas is administratively                    sufficient to establish that the activities
                                          proposed for this NWP. One commenter                    defined as a discharge of dredged or fill             are similar in nature. We also maintain
                                          asked why this permit only applies to                   material subject to section 404.                      that the discretion vested in district
                                          U.S. Coast Guard approved bridges and                   Therefore, section 401 water quality                  engineers to issue case-specific special
                                          not all bridges. The commenter                          certification is the appropriate process              conditions, including requirements for
                                          suggested that the Corps simplify the                   for determining whether the discharges                appropriate and practicable mitigation,
                                          permit by revising it to include                        associated with the return water comply               coupled with the ability of division
                                          construction, repair, seismic retrofit, or              with the appropriate water quality                    engineers to impose regional conditions
                                          widening of any bridge, regardless of                   standards. It is not necessary to qualify             for certain activities will ensure
                                          whether it spans navigable waters.                      the citation of 33 CFR 323.2(d). District             minimal adverse effects on the aquatic
                                          Another commenter suggested                             engineers will use that definition to                 environment, individually and
                                          modifying this NWP to allow the use of                  determine whether section 404 permits                 cumulatively. We disagree that activities
                                          another NWP to authorize the                            are required for dredging activities. We              in areas accessible to anadromous
                                          causeways and approach fills.                           believe that the inclusion of the citation            salmonids will necessarily result in
                                             The authority to authorize bridges or                provides a more complete description of               more than minimal impacts. Permittees
                                          causeways across navigable waters of                    activities that may constitute a                      must adhere to all applicable NWP
                                          the United States is held by the U.S.                   discharge of dredged material.                        general conditions including general
                                          Coast Guard. This NWP provides                             The NWP is reissued without change.                condition 2, Aquatic Life Movements,
                                          authorization under Section 404 of the                     NWP 17. Hydropower Projects. We                    and general condition 3, Spawning
                                          Clean Water Act for discharges of                       proposed to rearrange the text of this                Areas. The terms and conditions of this
                                          dredged or fill material into waters of                 NWP, without modifying any of its                     NWP, as well as the ability for district
                                          the United States associated with the                   terms or its scope. One commenter                     engineers to exercise discretionary
                                          construction of those bridges. The                      stated that the NWP should not apply to               authority, will help ensure that the
                                          construction, repair, seismic retrofit, or              hydropower projects exempt from                       activities authorized by this NWP result
                                          widening of these bridges must be                       Federal Energy Regulatory Commission                  in minimal adverse effects to
                                          approved by the U.S. Coast Guard. The                   licensing requirements. This commenter                anadromous salmon.
                                          environmental review conducted by the                   remarked that an individual permit                       Several commenters remarked that the
                                          U.S. Coast Guard during its                             should be required to ensure that                     wording of NWP 18 is confusing and
                                          authorization process will normally                     impacts to aquatic resources are                      suggested clarifications be provided.
                                          suffice for those related activities that               evaluated.                                            One commenter stated the language
                                          require the section 404 authorization                      We are retaining the applicability of              pertaining to ‘‘losses’’ is vague and
                                          provided by this NWP. District                          this NWP to hydropower projects that                  suggested we clarify the text by adding
                                          engineers can exercise discretionary                    are exempt from the licensing                         ‘‘permanent’’ losses.
                                          authority when the adverse effects to the               requirements of the Federal Energy                       We do not agree that additional
                                          aquatic environment may be more than                    Regulatory Commission. We believe the                 modifications are necessary to clarify
                                          minimal. Bridges constructed across                     pre-construction notification process                 the terms and conditions of this NWP.
                                          section 404 waters may be authorized by                 will provide adequate means for district              The proposed revisions to the text of the
                                          NWP 14, a regional general permit, or an                engineers to assess the impacts to the                NWPs were made to remove redundant
                                          individual permit. For the purposes of                  aquatic environment and, if necessary,                language and simplify the wording to
                                          clarification, the last sentence of this                exercise discretionary authority and                  make it clearer and more concise. The
                                          NWP is revised to read as follows:                      require an individual permit for a                    term ‘‘loss of waters of the United
                                          ‘‘Causeways and approach fills are not                  particular activity. In addition, division            States’’ is defined in the ‘‘Definitions’’
                                          included in this NWP and will require                   and district engineers will condition                 section which explains that the loss of
                                          a separate Section 404 permit.’’                        such activities where necessary to                    waters of the United States includes the
                                             This NWP is reissued with the                        ensure that these activities will have no             filled area and other waters that are
                                          modification discussed above.                           more than minimal adverse effects on                  permanently adversely affected by
                                             NWP 16. Return Water From Upland                     the aquatic environment, individually                 flooding, excavation or drainage because
                                          Contained Disposal Areas. We proposed                   and cumulatively.                                     of the regulated activity. Therefore, we
                                          to rearrange the text of this NWP so that                  The NWP is reissued as proposed.                   do not agree that elaboration on the term
                                          it will be consistent with the format of                   NWP 18. Minor Discharges. We                       ‘‘losses’’ within the text of this NWP is
                                          the other NWPs. No substantive changes                  proposed to modify this NWP by                        warranted.
                                          were proposed to the text of the NWP.                   applying the 1⁄10 acre limit to all losses               Some commenters objected to the 1⁄10
                                          One commenter recommended that the                      of waters of the United States, not just              acre limit as an unnecessary
                                          permit require the issuance of a                        special aquatic sites.                                administrative burden and unduly
                                          National Pollutant Discharge                               Several commenters expressed                       restrictive when coupled with the pre-
                                          Elimination System permit under                         support for the proposed revisions. A                 construction notification requirement.
                                          Section 402 of the Clean Water Act, in                  few commenters said that this NWP                        We do not agree that the 1⁄10 acre limit
                                          case the return water contains                          does not comply with the ‘‘similar in                 will result in an unnecessary
                                          pollutants entrained in the dredged                     nature’’ requirement for general permits.             administrative burden or be unduly
                                          material. This commenter expressed                      Other commenters asserted that the                    restrictive for the regulated public.
                                          concern that the discharge would not be                 cumulative impacts resulting from the                 While we recognize that the 1⁄10 acre
                                          properly considered through the water                   use of this NWP would not be minimal.                 threshold may preclude use of this NWP
                                          quality certification process under                     Another commenter said that this NWP                  for some activities, we have determined
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                                          Section 401 of the Clean Water Act. One                 should not authorize discharges into                  that activities that result in loss of more
                                          commenter said that the last sentence                   waters inhabited by species of                        than 1⁄10 acre of waters of the United
                                          should be modified to acknowledge that                  anadromous salmon.                                    States are not necessarily ‘‘minor’’
                                          incidental fallback would not require a                    We believe that the minor scope and                within the meaning of this permit. We
                                          section 404 permit.                                     nature of the types of discharge                      believe the reduced scope of the permit


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                                          11112                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          is justified by the enhanced protection                 construction and that impacts resulting               species to return to the area. In a given
                                          afforded to the aquatic environment and                 from new residential or commercial                    year, poor water quality may prevent
                                          will better ensure that authorized                      development be subject to NWPs 29 and                 submerged aquatic vegetation from
                                          activities result in no more that minimal               39, respectively.                                     inhabiting that area, but once water
                                          effects.                                                   This NWP authorizes minor                          quality improves those plants may grow
                                             Several commenters asserted that a 25                discharges of dredged or fill material in             back.
                                          cubic yard threshold is sufficient to                   waters of the United States provided                    One commenter was concerned about
                                          ensure minimal adverse impacts on the                   that the activity complies with the                   authorizing minor dredging activities in
                                          aquatic environment. One commenter                      specific terms and conditions of the                  waters containing habitat features for
                                          suggested that the volume criteria reflect              NWP and all applicable NWP general                    various life stages of anadromous fish,
                                          a net total volume of discharge or                      conditions. The applicability and                     including complex wood structures and
                                          excavation to allow for the management                  verification of the use of this NWP is at             edge habitats used for juvenile rearing
                                          of volumes greater than 25 cubic yards                  the discretion of district engineers based            and adult holding. The commenter
                                          as long as the net total discharged or                  on case-specific circumstances.                       indicated that this NWP should not be
                                          excavated does not exceed 25 cubic                      Therefore, we believe it would be                     used to authorize dredging in waters
                                          yards.                                                  inappropriate to prohibit its use for new             that are inhabited by anadromous
                                             The 25 cubic yard limit for excavating               residential and commercial                            salmonids.
                                          material, or discharging dredged or fill                development in the absence of case-                     The terms and conditions of this
                                          material, below the plane of the                        specific information. We note that the                NWP, as well as the ability for division
                                          ordinary high water mark or high tide                   limits on use of this permit are more                 and district engineers to exercise
                                          line is necessary to ensure that this                   restrictive than the limits on use of                 discretionary authority or condition this
                                          NWP authorizes only those activities                    NWPs 29 and 39, so developers could                   NWP, are sufficiently protective of
                                          with minimal individual and                             only use this permit if their impacts                 species of anadromous salmon. General
                                          cumulative adverse effects on the                       were smaller than those that could be                 condition 2, Aquatic Life Movements,
                                          aquatic environment. Applying this 25                   potentially authorized by these other                 specifies no activity may disrupt the
                                          cubic yard limit to net volumes may                     NWPs.                                                 necessary life cycle movements of the
                                          result in more than minimal adverse                        One commenter recommended                          aquatic species indigenous to the
                                          effects, because it could allow                         including language stating that the                   waterbody. In addition, general
                                          substantially larger volumes of material                discharge will not result in significant              condition 3, Spawning Areas, states that
                                          to be excavated or discharged.                          stream geomorphologic or hydrologic                   activities in any spawning areas must be
                                          Excavation or discharges of greater than                alteration, and that the discharge will               avoided to the maximum extent
                                          25 cubic yards in waters of the United                  not be placed for the purpose of, or                  practicable during spawning seasons
                                          States may be authorized by other types                 result in, impeding navigation.                       and the specific terms of this NWP
                                          of permits, including regional general                     General condition 9, Management of                 prohibit its use in anadromous fish
                                          permits and individual permits. The                     Water Flows, requires maintenance of                  spawning areas at all. Additional time of
                                          language in the September 26, 2006,                     the course, condition, capacity, and                  year restrictions may be imposed by
                                          proposal also helps simplify the                        location of open waters, such as                      division and district engineers to reduce
                                          implementation of this NWP, by                          streams, to the maximum extent                        or avoid impacts to juvenile salmonids
                                          providing clear, easily measured limits                 practicable. Concerns regarding                       utilizing these areas.
                                          and making it easier to enforce.                        potential impacts to navigation are                     Other commenters expressed
                                             Another commenter suggested this                     addressed by general condition 1, which               concerns that NWP 19 does not
                                          NWP be simplified to authorize only                     states that no activity may cause more                authorize activities that are similar in
                                          discharges of dredged or fill material                  than minimal adverse effects on                       nature with minimal impacts. One
                                          and exclude excavation activities in                    navigation.                                           commenter questioned whether this
                                          section 10 waters since the Corps does                     This NWP is reissued as proposed.                  NWP can be used for removal of a
                                          not regulate excavation activities under                   NWP 19. Minor Dredging. We                         sandbar across the mouth of a navigable
                                          section 404 that result only in incidental              proposed to remove the phrase ‘‘as part               waterway. A couple of commenters
                                          fallback.                                               of a single and complete project,’’ since             questioned why this NWP applies to
                                             Excavation activities may result in                  that requirement applies to all NWPs                  section 404 waters when the text of the
                                          discharges of dredged or fill material                  and it is not necessary to include that               permit states that it only authorizes
                                          into waters of the United States that                   phrase in the text of this NWP. One                   minor dredging activities in section 10
                                          require section 404 permits (see 33 CFR                 commenter supported the proposed                      waters. One commenter said that this
                                          323.2(d)). Therefore, it is not                         change.                                               NWP should not authorize dredging
                                          appropriate to remove references to                        Another commenter said that the                    activities in non-navigable waters,
                                          excavation from this NWP. Unless                        phrase ‘‘including sites where                        including small streams, because of the
                                          exempted under Section 404(f) of the                    submerged aquatic vegetation is                       greater potential for more than minimal
                                          Clean Water Act, excavation activities in               documented to exist but may not be                    adverse environmental effects.
                                          waters of the United States that result in              present in a given year’’ is not                        We believe that the minor scope and
                                          more than incidental fallback require                   appropriate and recommended that it be                nature of the types of dredging activities
                                          section 404 authorization. Minor                        removed. The commenter asserted that                  authorized by this NWP are sufficient to
                                          discharges authorized under NWP 18                      the Corps should not prohibit the use of              establish that the activities are similar in
                                          often involve excavation activities that                this NWP in areas where submerged                     nature. This NWP can only be used to
                                          result in more than incidental fallback                 aquatic vegetation was present in the                 authorize the removal of materials from
                                          and would therefore constitute a                        past, but there is no longer evidence that            waters subject to Section 10 of the
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                                          discharge that is regulated under section               it is still present.                                  Rivers and Harbors Act of 1899.
                                          404.                                                       We are retaining this provision of the             Dredging activities in section 10 waters
                                             One commenter recommended NWP                        NWP, since areas where submerged                      may require section 404 authorization,
                                          18 be specifically prohibited from use                  aquatic vegetation is documented to                   which may be provided by this NWP. In
                                          for any new residential and commercial                  exist have a high potential for those                 waters of the United States that are not


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11113

                                          subject to section 10 jurisdiction (i.e.,               authorities and responsibilities of each              eastern United States. They discussed
                                          section 404-only waters), NWP 18,                       agency for permit decisions.                          the differences in mining and
                                          regional general permits, or individual                   We believe there may be some                        reclamation techniques and believed the
                                          permits may be used to authorize those                  confusion regarding the intent of the                 Corps should recognize these
                                          activities. This permit could be used to                term ‘‘surface’’ coal mining operations.              differences by establishing two NWPs
                                          remove a sandbar across the mouth of a                  The Corps did not intend to restrict use              for coal mining. One commenter noted
                                          Section 10 water provided the activity                  of this NWP to only a particular type of              that acreage limits need to be larger for
                                          met all of the other conditions for its                 coal mining technique. Any coal mining                the western United States. A number of
                                          use.                                                    activities can be considered for                      commenters suggested that regional
                                             This NWP is reissued without change.                 authorization under NWP 21 to the                     conditions could be used to address the
                                             NWP 20. Oil Spill Cleanup. We did                    extent the activities occur on the surface            issue of limits. Several commenters
                                          not propose any substantive changes to                  of the land. In particular, while                     noted that there was no compelling
                                          this NWP. One commenter requested                       discharges associated with underground                scientific or environmental basis or
                                          clarification of the applicability of NWP               coal mining activities now require                    rationale to establish limits on NWP 21.
                                          38 for emergency response to an oil                     authorization under NWP 50 rather than                They noted that due to hydrologic,
                                          release in waters of the United States                  NWP 21, surface processing activities                 climatic, and ecological variations, there
                                          from electrical equipment that is not                   associated with underground coal                      was no defensible way to establish a
                                          covered by a Spill Prevention, Control,                 mining may still be authorized by this                specific threshold below which impacts
                                          and Countermeasure (SPCC) Plan. These                   permit provided they meet the                         could be said to be ‘‘minimal’’ across
                                          releases are governed by EPA’s                          conditions for its use.                               the vastly differing geographical and
                                          polychlorinated biphenyl spill response                 Proposed Limits                                       hydrological regimes where mining
                                          regulations at 40 CFR part 761. Because                                                                       occurs. Several commenters stated that
                                                                                                     There were numerous comments
                                          the activities are not included in a SPCC               regarding limitations on NWP 21. A                    arbitrary and unnecessary thresholds
                                          Plan, they were not authorized by the                   number of commenters recommended                      would slow the permit process and
                                          previous or the proposed versions of                    limits on the length of stream that could             result in a loss of coal production,
                                          NWP 20. Since the required work must                    be filled under NWP 21, and other                     which could be construed as a ‘‘takings’’
                                          be initiated within 24 or 48 hours of                   commenters recommended an overall                     that violated substantive due process
                                          discovery of the release, the commenter                 limit on impacts to waters of the United              rights. Other commenters noted that
                                          requested that either NWP 20 be                         States of 1⁄2 acre. One commenter                     limiting the use of NWP 21 would result
                                          modified or the pre-construction                        suggested that the threshold limits                   in a loss in royalty and tax revenues and
                                          notification requirement for NWP 38 be                  should be 2 acres and 1,500 linear feet.              increases to the cost of the nation’s
                                          removed, to allow these activities to                   Three commenters recommended a 300                    energy supply by restricting coal
                                          take place in a timely manner.                          linear foot limit on filling streams and              production. One commenter noted that
                                             We agree with the commenter’s                        a 1⁄2 acre limit on impacts to all waters,            it would take more of the Corps’ limited
                                          concern but do not think it is                          and that these impacts could not be                   resources to review surface mining
                                          appropriate to remove the pre-                          waived by the district engineer. Two                  projects as individual permits. One
                                          construction notification requirement                   other commenters concurred with the                   commenter stated that thresholds would
                                          from NWP 38. We are thus modifying                      300 foot limit but also suggested not                 also impact the Corps’ ability to comply
                                          NWP 20 to authorize the cleanup of oil                  allowing the use of NWP 21 in                         with Executive Order 13212, which
                                          releases in waters of the United States                 watersheds where the cumulative                       requires federal agencies to expedite
                                          from electrical equipment that are                      amount of filled streams was already                  their review of permits for energy
                                          governed by EPA’s polychlorinated                       causing more than minimal harm.                       related projects. One commenter noted
                                          biphenyl spill response regulations at 40               Several commenters stated that any                    that if a 2-acre limit were established for
                                          CFR part 761.                                           linear foot limits should apply to all                NWP 21, more than 60 percent of the
                                             This NWP is reissued with the                        streams, ephemeral, intermittent, and                 nation’s coal production would not be
                                          modification discussed above.                           perennial. One commenter said that this               eligible for the NWP. One commenter
                                             NWP 21. Surface Coal Mining                          NWP should not authorize discharges                   stated that a 3-acre limit in the western
                                          Operations. We proposed to change the                   into perennial streams. Another                       United States would have a significant
                                          title of this NWP. We also proposed                     commenter stated that the use of NWP                  impact on Western mining operations.
                                          allowing authorization of projects by                   21 should not be allowed if more than                 One commenter noted that if a limit of
                                          this NWP that were currently being                      10 percent of the headwater streams in                less than 50 acres was adopted, the
                                          processed as part of an integrated permit               the watershed had been filled or                      Corps’ would not achieve its goal of
                                          processing procedure in lieu of an                      otherwise degraded. One commenter                     focusing its limited resources on
                                          authorization from the Department of                    stated that a 250-acre watershed limit                projects that have the potential for more
                                          Interior, Office of Surface Mining (OSM)                was appropriate but that drainage areas               environmentally damaging adverse
                                          or by states with approved programs                     was not the only factor that should be                effects. Two commenters believed
                                          under Title V of the Surface Mining                     considered in determining if a project                safeguards were in place to ensure
                                          Control and Reclamation Act (SMCRA)                     should qualify for NWP 21.                            impacts do not cause more than
                                          of 1977. The Corps, the Environmental                      There were also a substantial number               minimal individual or cumulative
                                          Protection Agency, OSM, and the U.S.                    of comments that objected to limitations              effects. They noted that general
                                          Fish and Wildlife Service entered into a                on NWP 21. Many commenters stated                     condition 20, Mitigation, requires
                                          Memorandum of Understanding on                          that acreage limits that may be                       compensatory mitigation to offset the
                                          February 8, 2005. This MOU envisioned                   appropriate for eastern states would not              adverse effects to the aquatic
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                                          a collaborative process in which the                    be appropriate for western states and                 environment, and that there was no
                                          SMCRA authority chooses to be the lead                  would be unnecessarily restrictive. Two               need for arbitrarily chosen acreage
                                          agency in coordinating interagency                      commenters suggested issuing two                      limits because the mitigation
                                          review of applications for surface coal                 versions of NWP 21, one for the western               requirement counterbalances all adverse
                                          mining operations while preserving the                  United States and another for the                     effects.


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                                          11114                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                             This NWP is used to provide section                  rationale was supplied to support these               and cumulative adverse impacts on the
                                          404 authorization for surface coal                      specific limits. Several commenters did               aquatic environment.
                                          mining activities that have also been                   submit information from the                              We agree with these commenters. The
                                          authorized by the Office of Surface                     Programmatic Environmental Impact                     pre-construction notification
                                          Mining or states with approved                          Statement (PEIS) for mountaintop                      requirements of all NWPs allows for a
                                          programs under Title V of the Surface                   mining/valley fill. However, the PEIS                 case-by-case review of activities that
                                          Mining Control and Reclamation Act                      did not support or determine                          have the potential to result in more than
                                          (SMCRA). Previously, there have been                    appropriate limits for NWP 21. Based on               minimal adverse effects to the aquatic
                                          no limits associated with impacts to                    these considerations along with the fact              environment. If the adverse effects on
                                          waters of the United States for NWP 21.                 that the impacts to waters vary greatly               the aquatic environment are more than
                                          This was based partly on the belief that                depending on the mining techniques                    minimal, then the district engineer can
                                          the analyses and environmental                          and the environmental factors in the                  either add special conditions to the
                                          protection performance standards                        area, we have determined that                         NWP authorization to ensure that the
                                          required by SMCRA in conjunction with                   establishing a specific threshold limit               activity results in no more than minimal
                                          the pre-construction notification                       would not be practical on a national                  adverse environmental effects or
                                          requirement, are generally sufficient to                basis. We believe that regional                       exercise discretionary authority to
                                          ensure that NWP 21 activities result in                 conditions, as appropriate, and site-                 require an individual permit. While
                                          minimal individual and cumulative                       specific review of each pre-construction              many NWPs allow the permittee to
                                          adverse impacts on the aquatic                          notification will ensure that NWP 21                  assume authorization if he or she has
                                          environment.                                            authorizes activities with no more than               not heard back from the Corps within 45
                                             Furthermore, we believe the change in                minimal adverse effects on the aquatic                days of submitting a complete pre-
                                          NWP 21 in 2002, which requires not                      environment, individually and                         construction notification, NWP 21
                                          only notification to the Corps for all                  cumulatively. The Corps has                           requires written verification before the
                                          projects that may be authorized by this                 determined that it is both efficient and              project can proceed. This ensures that
                                          permit but also explicit authorization                  environmentally protective to issue an                adequate time is available to the Corps
                                          from the Corps before the activity can                  NWP 21 that can be used to authorize                  to review the extensive documentation
                                          proceed, has strengthened the                           most activities that have no more than                that pre-construction notifications for
                                          environmental protection for projects                   minimal adverse effects on the aquatic                NWP 21 often include, coordinate with
                                          authorized by this permit. One                          environment and allow division                        other agencies as necessary, and
                                          commenter requested that this                           engineers to establish regional                       determine whether exercise of
                                          requirement be removed from this NWP.                   conditions that determine appropriate                 discretionary authority is necessary to
                                          However, we continue to believe that                    limits for impacts to waters based on the             ensure no more than minimal effects.
                                          this 2002 change helps ensure that no                   functions and values of aquatic                       Scope of Analysis
                                          activity authorized by this permit will                 resources within their division.
                                          result in greater than minimal adverse                                                                          One commenter stated that the scope
                                          impacts, either individually or                         Regional Conditions                                   of analysis for NWP 21 review should
                                          cumulatively, on the aquatic                              There were three commenters who                     extend beyond the effects of fills in
                                          environment, because it requires a case-                noted that the division engineer has the              waters. Another commenter noted that
                                          by-case review of each project. If the                  discretion to add regional terms and                  the Clean Water Act is clear that general
                                          district engineer determines through                    conditions to NWP 21 and that acreage                 permits may only be issued if the
                                          this case-by-case review that the activity              limitations should be determined at the               permitted activities have minimal
                                          has the potential to result in more than                regional level. The Corps agrees, based               impacts on the environment as a whole
                                          minimal adverse effects to the aquatic                  on the discussion above regarding                     and not just the aquatic environment.
                                          environment, he or she can exercise                     limitations, that regional conditions are               Several commenters stated that NWP
                                          discretionary authority to require an                   the best way to address regional                      21 should not be reissued, in order to
                                          individual permit. Also, because of the                 concerns regarding surface coal mining                protect wildlife habitat, outdoor
                                          case-by-case review and the requirement                 activities and NWP 21. Division                       recreation, the quality of life in rural
                                          for written verification, we do not agree               engineers can add regional conditions to              communities and environmental
                                          that it is necessary to prohibit                        any NWP to further restrict the use of                integrity. A myriad of comments were
                                          discharges of dredged or fill material                  the NWP to ensure that the NWP                        received itemizing impacts related to
                                          into perennial streams.                                 authorizes only activities with no more               authorizations associated with NWP 21.
                                             Lastly, the Corps recognizes that there              than minimal adverse effects on the                   These impacts included irreversible
                                          are vast differences in coal mining                     aquatic environment in a particular                   damages to the American people, the
                                          techniques not only between the                         watershed or other geographic region.                 destruction of lives and the natural and
                                          western and eastern parts of the United                 The division engineer cannot modify                   cultural heritage of Appalachia,
                                          States, but also within the Illinois Coal               the NWP by adding regional conditions                 Montana and Wyoming, loss of hunting
                                          Basin and the Appalachian Coal Fields                   to make the NWP less restrictive (see 33              opportunities, the exploitation of
                                          themselves. There are also considerable                 CFR 330.1(d)). The use of regional                    impoverished areas by large
                                          differences in geological, topographical,               conditions recognizes that functions and              corporations, global warming,
                                          climatological, hydrological and                        values of aquatic resources differ greatly            landslides, blasting, truck traffic on
                                          ecological regimes in the areas where                   across the country.                                   roads not designed or built to handle
                                          coal resources are located across the                                                                         heavy loads, harm to bird populations,
                                          United States. Furthermore, no specific                 Discretionary Authority                               destruction of valuable hardwood trees,
                                          scientific or environmental basis for                      Three commenters noted that NWP 21                 loss of medicinal plants, affects on the
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                                          determining a uniform national limit on                 allows the Corps to exercise                          tourism/vacation home industry, and
                                          NWP 21 was submitted for                                discretionary authority during the pre-               local sickness. Several commenters
                                          consideration. As noted above, there                    construction notification review process              stated that mined areas cannot be
                                          were several comments suggesting                        for any project which has the potential               restored to pre-mining conditions, such
                                          specific limits but no ecological                       to cause more than minimal individual                 as native forest. Several commenters


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11115

                                          expressed concern about coal slurry                     State Programmatic General Permits                    successful headwater stream creation.
                                          damaging downstream areas.                              and Regional General Permits                          Also, the commenters stated that the
                                             All of these impacts are outside of the                                                                    Corps did not include any specific
                                                                                                    Several commenters suggested that a
                                          Corps’ scope of analysis pursuant to the                                                                      guidelines for how to assess stream
                                                                                                  state programmatic or regional general
                                          National Environmental Policy Act                                                                             function in order to determine the
                                                                                                  permit or other methods (e.g., a national
                                          (NEPA). The Corps evaluation of coal                                                                          adequacy of compensatory mitigation.
                                                                                                  MOU) be developed to reduce the
                                          mining activities is focused on impacts                                                                       They also stated that the Corps has not
                                                                                                  duplication of effort by the regulatory
                                          to aquatic resources. Mining in general                                                                       shown that mitigation will offset the
                                                                                                  agencies, therefore reducing cost and
                                          is permitted under a separate Federal                                                                         impacts authorized under NWP 21 or
                                          law, the Surface Mining Control and                     delays in receiving authorizations.
                                                                                                                                                        that off-site enhancement of streams
                                          Reclamation Act. Impacts associated                       State programmatic and regional
                                                                                                                                                        would fully compensate for functions of
                                          with surface coal mining and                            general permits are developed at the
                                                                                                                                                        streams that are destroyed. Other
                                          reclamation operations are                              district level. The Corps supports and
                                                                                                                                                        commenters stated that the Corps
                                          appropriately addressed by the Office of                participates in such efforts where
                                                                                                                                                        mistakenly allows the mitigation
                                          Surface Mining or the applicable state                  possible.
                                                                                                                                                        requirements of SMCRA and state water
                                          agency. Under these circumstances, the                  Surface Mining Control and                            quality laws to satisfy the independent
                                          Corps’ NEPA implementing regulations                    Reclamation Act                                       requirements of Section 404 of the Clean
                                          clearly restrict the Corps’ scope of                                                                          Water Act. They stated that allowing a
                                                                                                     Several commenters stated that coal
                                          analysis to impacts to aquatic resources.                                                                     permittee to claim a compensatory
                                                                                                  mining is the most environmentally
                                          Integrated Permit Process                                                                                     mitigation or reclamation activity
                                                                                                  regulated activity, and SMCRA, along
                                                                                                                                                        already required under SMCRA as
                                            Several commenters supported the                      with Sections 401 and 402 of the Clean
                                                                                                                                                        compensatory mitigation under the
                                          Memorandum of Understanding (MOU)                       Water Act, already require analyses of
                                                                                                                                                        Clean Water Act is ‘‘double-counting’’
                                          between the EPA, Corps, OSM and the                     all of the factors addressed under
                                                                                                                                                        and improperly blurs the requirements
                                          USFWS regarding the integrated permit                   Section 404 of the Clean Water Act.
                                                                                                                                                        of sequencing (i.e., avoidance,
                                          process for coal mining mentioned in                    Therefore, as the above-referenced                    minimization, mitigation) imposed
                                          the proposed NWP language. Some                         programs already regulate impacts to                  under the 404(b)(1) guidelines. Other
                                          suggested the integrated permit process                 aquatic resources, including impacts                  commenters recommended that
                                          along with the Standard Operating                       related to water quality, endangered                  mitigation of 1:1 should be required in
                                          Procedure (SOP) for NWP 21 be                           species, historic properties, and the                 order to achieve no net loss, and that
                                          mandatory under NWP 21. Some                            hydrologic regime, further review by the              mitigation also be required for potential,
                                          commenters stated that the integrated                   Corps only creates an additional                      as well as actual, impacts. Several
                                          permit process does not eliminate the                   administrative burden without any real                commenters stated that final
                                          dual review of section 404 and SMCRA                    benefits.                                             reclamation of wetland habitat will most
                                          as the MOU intended, while other                           The Corps understands coal mining is               likely exceed the required compensatory
                                          commenters stated that the integrated                   covered by many environmental                         mitigation.
                                          permit process was unlawful because                     regulations; however the Corps has                       In order to ensure that an activity
                                          through it, the Corps has delegated its                 determined that SMCRA, in its current                 results in no more than minimal adverse
                                          section 404 authority to the states                     form, does not remove the need, either                effect on the aquatic environment, the
                                          processing the SMCRA permit                             legally or substantively, for independent             Corps will add permit conditions that
                                          applications. One of the commenters                     authorization under Section 404 of the                require compensatory mitigation that
                                          supporting the MOU stated that the                      Clean Water Act. Consequently, this                   meets specified success criteria. The
                                          current integrated permit process did                   NWP does not duplicate the SMCRA                      Corps will generally require the
                                          not meet the goal of the MOU, as                        permit process. The Corps continues to                permittee to monitor the mitigation site
                                          evidenced by its failure in Ohio, since                 work with the other agencies to avoid                 for five years and, if the mitigation site
                                          dual reviews were still being                           potential duplication of efforts and uses             does not meet the success criteria at that
                                          undertaken by the regulatory agencies.                  appropriate work and studies done by or               time, remediation or additional
                                            The MOU recommends that Federal                       for other agencies (e.g., surveys/findings            mitigation will be required. This
                                          and state agencies coordinate reviews of                under the Endangered Species Act or                   ensures that the authorized activity will
                                          coal mining permit applications, with                   Section 106 of the National Historic                  not result in a net loss in aquatic
                                          the SMCRA agency as the lead agency.                    Preservation Act as well as SMCRA                     functions. The Corps has increased its
                                          Currently, in areas that have developed                 permit documentation) in its analysis of              compliance efforts to ensure that
                                          or are in the process of developing an                  the proposed project.                                 projects authorized by DA permits are
                                          integrated permit process, the agencies                                                                       constructed as authorized and that
                                          have elected to make the process                        Mitigation
                                                                                                                                                        mitigation is successful.
                                          voluntary. The integrated permit                          Several commenters stated that                         We are currently developing new
                                          process does not eliminate the                          mitigation done for NWP 21 is                         stream functional assessment protocols
                                          regulatory responsibilities of the                      scientifically indefensible and, absent               to identify and quantify the functions
                                          participating agencies, but allows the                  such mitigation, the projects authorized              lost through authorized impacts and the
                                          various permit applications to be                       under NWP 21 have more than minimal                   functions gained or enhanced through
                                          reviewed concurrently while utilizing                   adverse effect and are therefore                      mitigation. We removed the language
                                          information from one application to                     impermissible. They stated that current               from the proposed NWP 21 that
                                          fulfill required sections of other                      mitigation projects have so far been                  required the applicant to furnish a
                                          applications, where appropriate. The                    unsuccessful and referenced a court                   SMCRA or state-approved mitigation
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                                          process allows for timelier reviews                     case in the Southern District of West                 plan. The Corps recognizes that SMCRA
                                          while providing the framework for                       Virginia (Ohio Valley Environmental                   does not require ‘‘mitigation’’ per-se, but
                                          better environmental protection. The                    Coalition v. Bulen), where they noted                 does require ‘‘reclamation/restoration’’,
                                          Ohio integrated permit process is still in              that a Corps official stated that he did              and that some states require
                                          use for those who choose to use it.                     not know of a single instance of                      ‘‘mitigation’’ above Corps requirements.


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                                          11116                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          The Corps coordinates with the SMCRA                    The pre-construction notification                     Department of the Army permits,
                                          and state resource agencies to achieve                  process for NWP 21, which requires the                including NWPs, as well as
                                          appropriate aquatic restoration on mine                 applicant to wait until he or she                     compensatory mitigation achieved
                                          sites, which can reduce or eliminate off-               receives verification from the Corps,                 through aquatic resource restoration,
                                          site compensatory mitigation needs. The                 provides this case-specific                           creation, and enhancement.
                                          Corps does not consider this ‘‘double-                  determination. If the District Engineer                  In addition, we believe that the Corps
                                          counting’’, because the areas restored                  determines that a particular proposal                 can rely on mitigation in making a
                                          are only counted once in the                            will result in more than minimal                      minimal adverse environmental effects
                                          replacement of aquatic resource                         adverse environmental effects, he will                determination.
                                          functions. As long as the functions lost                assert discretionary authority and                       One commenter requested that the
                                          as a result of the permitted activity are               require an individual permit. Bonding is              Corps clarify what constitutes a ‘‘single
                                          mitigated through the onsite restoration                covered under general condition 20. The               and complete surface coal mining
                                          or enhancement, it does not matter if the               Corps notes that the SMCRA permitting                 operation’’ since approved mines can
                                          restoration also meets other goals                      process provides for public notice and                expand through either the addition of
                                          unrelated to the Section 404 impacts.                   comment on all coal mining permits.                   substantial acreages or the addition of
                                          General condition 20 establishes the                                                                          small acreages (incidental boundary
                                                                                                  Minimal Adverse Effects                               revisions). This commenter asked
                                          framework for achieving no net loss of
                                          waters/wetlands, as well as the                           A few commenters stated that the                    whether all revisions, including
                                          sequential review of mitigation on-site.                Secretary of the Army can only issue                  incidental boundary revisions, are
                                          The Corps takes into account the fact                   NWPs by making an up-front                            considered as single and complete coal
                                          that, in certain areas and circumstances,               determination that the activities                     mining operations.
                                          any Corps compensatory mitigation                       authorized by each NWP category will                     District engineers use the criteria in
                                          requirement may be fully encompassed                    cause only minimal adverse effects and                the definition of ‘‘single and complete
                                          or exceeded by requirements under                       the Corps cannot ignore harm already                  project,’’ which is found in the
                                          other authorities. As long as the impacts               done when assessing cumulative                        ‘‘Definitions’’ section of the NWPs,
                                          to the aquatic environment are fully                    impacts. The commenters stated that the               when identifying single and complete
                                          mitigated, the Corps will not require                   Corps has no reasoned basis or                        coal mining operations. District
                                          additional compensation.                                substantial evidence to support its                   engineers will determine, on a case-by-
                                                                                                  determinations that the individual or                 case basis, whether the expansion of an
                                          Withdraw NWP 21                                         cumulative environmental impacts                      existing mine constitutes a separate
                                             Several commenters requested that                    associated with NWP 21 will be                        single and complete project.
                                          NWP 21 be withdrawn and that the                        minimal. Several commenters similarly
                                                                                                                                                        Impacts From NWP 21 Activities
                                          Corps consider authorizations under                     stated that compensatory mitigation
                                          state or regional permits where                         could not be used to reduce the net                      Many commenters opposed the
                                          cumulative impacts and mitigation                       adverse impacts to the minimal level in               reissuance of NWP 21 because of the
                                          measures can be evaluated on a more                     order to qualify for general permits.                 potential impacts to the aquatic
                                          focused level that assures minimal                      Therefore, NWP 21 exceeds the                         environment and water resources.
                                          impacts on the environment.                             definition of minimal adverse                         Several commenters expressed concerns
                                             Division and district engineers have                 environmental effects and all coal                    about impacts to water supplies and
                                          the authority to revoke or modify any or                mining should be reviewed under the                   drinking water, downstream water uses,
                                          all of the NWPs and require                             individual permit process. A number of                and recreational opportunities such as
                                          authorizations for proposed projects by                 commenters stated that surface coal                   fishing. Concerns were also expressed
                                          other general permits or individual                     mining results in significant ecological              about water pollution, the effects of
                                          permits. This should be determined on                   damage to headwater stream systems,                   burying streams that support aquifers,
                                          a local level.                                          when considered both individually and                 and loss of streams and wetlands. This
                                                                                                  cumulatively, and it cannot be                        NWP requires compliance with all of
                                          Independent Evaluation                                  reasonably assumed that those stream                  the general conditions for the NWPs,
                                            Several commenters stated that the                    losses can be mitigated into                          which address many of these concerns.
                                          burial or other degradation of hundreds                 insignificance.                                       Additionally, many of these factors will
                                          of miles of Appalachian streams from                      We believe our process for NWP 21                   be evaluated during the project-specific
                                          mining demands a thorough,                              ensures that activities authorized by the             evaluation.
                                          independent review, public notice, and                  NWP result in no more than minimal                       One commenter noted that NWP 21
                                          analysis of alternatives and                            adverse impacts to the aquatic                        does not provide the public an
                                          minimization, which is provided only                    environment because each project is                   opportunity to comment on the specific
                                          through the individual permit process.                  reviewed on a case-by-case basis and the              conditions of a permit that will affect
                                          A few commenters stated that coal                       district engineer either makes a minimal              their communities and watersheds.
                                          mining rearranges the natural landscape                 impacts determination on the project or                  Section 404(e) of the Clean Water Act
                                          and deserves to be studied on a case-by-                asserts discretionary authority and                   provides the statutory authority for the
                                          case basis. One commenter stated that                   requires an individual permit.                        issuance of general permits on a
                                          each project should be independently                    Additionally, as noted above, division                nationwide basis for any category of
                                          evaluated with proper safeguards in                     engineers can add regional conditions to              activities. The Corps establishes NWPs
                                          place to include meaningful bonds that                  any NWP to further restrict the use of                in accordance with section 404(e), by
                                          would be sufficient to cover remediation                the NWP to ensure that the NWP                        publishing and requesting comments on
                                          costs when companies declare                            authorizes only activities with no more               the proposed permits. The general
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                                          bankruptcy.                                             than minimal adverse effects on the                   public has the opportunity to comment
                                            A careful case-specific determination                 aquatic environment in a particular                   on NWPs at this time. In order to
                                          that a project will result in no more than              watershed or other geographic region.                 address the requirements of the National
                                          minimal impacts is necessary for a                      Each district tracks losses of waters of              Environmental Policy Act, the Corps
                                          project to be authorized by this NWP.                   the United States authorized by                       prepares a decision document for each


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                                          NWP along with a 404(b)(1) Guidelines                   NWP so that it is in a format similar to              removal of vehicles from waters of the
                                          analysis. The decision document                         the other NWPs. In addition, we                       United States.
                                          discusses the anticipated impacts on the                proposed to require pre-construction                     We agree that the presence of
                                          Corps’ public interest factors from a                   notification if the activity requires                 vehicles, and the associated automotive
                                          national perspective. NWPs are issued                   discharges of dredged or fill material                fluids, in waters of the United States can
                                          at the conclusion of this process. The                  into special aquatic sites.                           be environmentally damaging, and this
                                          individual projects that are proposed for                  One commenter asked if the pre-                    NWP can be used to authorize their
                                          authorization under an NWP are not                      construction notification requirement                 removal when they constitute an
                                          given a permit but a verification or                    included marine protected areas. One                  obstruction to navigation. However, we
                                          authorization that the project complies                 commenter said that pre-construction                  believe that the pre-construction
                                          with an NWP. There are no                               notification should be required for all               notification requirements for activities
                                          requirements for public comments on                     vessel removals because certain removal               into special aquatic sites are necessary
                                          specific projects authorized under                      methodologies may result in additional                to ensure that the activities authorized
                                          NWPs. However, in the case of NWP 21,                   environmental impacts. One commenter                  by this NWP have no more than
                                          all projects must have undergone a                      stated that pre-construction notification             minimal adverse effects. Division and
                                          separate SMCRA review process the                       should be required for all vessel                     district engineers can evaluate projects
                                          provides for public notice and                          removals from special aquatic sites, not              on a case by basis in situations where
                                          comment.                                                just those involving discharges of                    pollutants may be leaking from vehicles
                                             Several commenters recommended                       dredged or fill material.                             and determine if expedited or
                                          that NWP 21 be eliminated because it                       Pre-construction notification is                   emergency processing procedures are
                                          fails to require that the applicant                     required for NWP 22 activities in                     warranted.
                                          demonstrate that there are no                                                                                    A commenter requested that the Corps
                                                                                                  designated critical resources waters and
                                          practicable alternatives to placing fill in                                                                   indicate when EPA and Corps permits
                                                                                                  their adjacent wetlands (see general
                                          waters of the United States, a                                                                                are required or provide citations to EPA
                                                                                                  condition 19), which may include
                                          requirement of Section 404(e) of the                                                                          and Corps regulations. One commenter
                                                                                                  marine protected areas. Designated
                                          Clean Water Act. The commenters                                                                               noted that the parenthetical
                                                                                                  critical resource waters include NOAA-
                                          stated that the Corps wrongly assumes                                                                         identification of statutory authorities
                                                                                                  designated marine sanctuaries, Natural                was not included at the end of the text
                                          the SMCRA process to be comparable to
                                                                                                  Estuarine Research Reserves, and other                for this NWP.
                                          Section 404 and the 404(b)(1)
                                                                                                  waters identified by the district engineer               The ‘‘Note’’ to this NWP already
                                          Guidelines. The commenters noted that,
                                                                                                  after the issuance of a public notice and             includes a citation of applicable EPA
                                          in fact, SMCRA does not require the
                                                                                                  an opportunity for public comment. We                 regulations. We do not believe it is
                                          applicant to choose the method of coal
                                                                                                  do not agree that pre-construction                    necessary to add citations to the Corps
                                          waste management that avoids and
                                                                                                  notification should be required for all               regulations for implementing Section
                                          minimizes impacts and is least
                                                                                                  activities authorized by this NWP.                    404 of the Clean Water Act and Section
                                          damaging to waters of the United States.
                                             The Corps does not assume that other                 However, we are modifying this NWP to                 10 of the Rivers and Harbors Act of
                                          state or Federal agencies conduct a                     require pre-construction notification for             1899. We are correcting this NWP to
                                          review that is comparable to the section                activities in special aquatic sites, to               identify the statutory authorities under
                                          404(b)(1) Guidelines. Although analysis                 ensure that those activities result in                which this NWP is issued (i.e., sections
                                          of offsite alternatives is not required in              minimal adverse effects on the aquatic                10 and 404).
                                          conjunction with general permits, each                  environment. Vessel removal activities                   Another commenter requested that
                                          proposed project is evaluated for onsite                in special aquatic sites, especially coral            the Corps clarify in the preamble to the
                                          avoidance and minimization, in                          reefs and vegetated shallows, have the                final rule that this NWP also applies to
                                          accordance with general condition 20,                   potential to result in more than minimal              the removal of objects and structures
                                          and is not authorized under the NWP if                  adverse effects, even though there may                such as derelict mooring and breasting
                                          the adverse impacts to waters of the                    be no discharge of dredged or fill                    structures, piles, docks, bridges and
                                          United States are more than minimal.                    material. Vessel removal activities in                trestles that are man made obstructions
                                             Five commenters noted that coal                      other areas conducted in compliance                   to navigation. They remarked that some
                                          slurry impoundments should not be                       with the NWP and the general                          districts apply this NWP only to the
                                          allowed by an NWP and that NWPs can                     conditions will normally have no more                 removal of vessels. One commenter
                                          only be issued for activities that are                  than minimal adverse effects on the                   requested clarification as to when a pre-
                                          similar in nature and that valley fills                 aquatic environment, individually and                 construction notification is required
                                          and coal slurry impoundments are not                    cumulatively. Further, division and                   with respect to general condition 18,
                                          similar in nature.                                      district engineers will condition these               Historic Properties. They asked if the
                                             The Corps has determined that slurry                 activities as necessary to ensure that                permittee would have to wait to remove
                                          impoundments and valley fills are part                  they will have no more than minimal                   the vessel until after the district
                                          of surface coal mining activities and are               adverse effects on the aquatic                        engineer has informed the permittee
                                          therefore similar in nature. The ‘‘similar              environment, individually and                         that compliance with general condition
                                          in nature’’ requirement does not mean                   cumulatively.                                         18 is complete.
                                          that activities authorized by an NWP                       Another commenter observed that                       The text of the NWP clearly states that
                                          must be identical to each other. We                     vehicles are often found in waters of the             the NWP applies to the removal of man-
                                          believe the ‘‘categories of activities that             United States due to accidents,                       made obstructions to navigation, which
                                          are similar in nature’’ requirement of                  abandonment, and other reasons, and                   may include any of the obstructions
                                          Section 404(e) is to be interpreted                     that the removal of the vehicles is                   identified by the commenter in addition
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                                          broadly, for practical implementation of                necessary to minimize the adverse                     to wrecked, abandoned, or disabled
                                          the NWP program.                                        environmental impacts associated with                 vessels. If the vessel is listed, or eligible
                                             The NWP is reissued as proposed.                     release of automotive fluids. The                     for listing, in the National Register of
                                             NWP 22. Removal of Vessels. We                       commenter requested that this NWP be                  Historic Places, then consultation under
                                          proposed to rearrange the text of this                  modified to allow for the expedited                   Section 106 of the National Historic


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                                          11118                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          Preservation Act is required. The                       impact small amounts of waters of the                 are individually minor, are widely
                                          permittee would have to wait until the                  United States and qualify for approved                distributed across a vast area, and are
                                          section 106 process has been completed                  categorical exclusions. In response to a              scattered across many watersheds. In
                                          before conducting the work.                             pre-construction notification, the                    addition, compensatory mitigation
                                             The NWP is reissued with the                         district engineer can add special                     offsets the authorized losses, and helps
                                          modification discussed above.                           conditions to the NWP authorization to                ensure that the authorized activities
                                             NWP 23. Approved Categorical                         ensure that adverse effects on the                    result in minimal adverse effects on the
                                          Exclusions. We proposed to modify this                  aquatic environment are minimal or                    aquatic environment.
                                          NWP by reorganizing the text, adding                    exercise discretionary authority to                      One commenter objected to the lack of
                                          language to explain that Corps’                         require an individual permit for the                  specificity regarding the method of
                                          Regulatory Guidance Letters (RGLs) list                 work.                                                 solicitation of public comments if new
                                          the approved Categorical Exclusion (CE)                    Two commenters said that this NWP                  categorically excluded activities are
                                          activities, and adding language that                    authorizes activities that are not similar            proposed.
                                          directs prospective permittees to the                   in nature. One commenter suggested                       When proposing to add categorical
                                          appropriate RGLs to determine if pre-                   that categorizing impacts by the effects              exclusions for use with this NWP, Corps
                                          construction notification is required.                  instead of by the nature of activity is               Headquarters publishes a proposal in
                                             One commenter supported the                          invalid, and that there appeared to be no             the ‘‘Notices’’ section of the Federal
                                          proposed rewording of NWP 23, and                       limiting principle on the nature of the               Register. Public comment will be
                                          supported the clarification of pre-                     activities that could be permitted.                   solicited through this notice, and all
                                          construction notification requirements.                    Regulatory Guidance Letter 05–07                   comments received will be thoroughly
                                          One commenter remarked that this NWP                    lists all categorical exclusions currently            considered when the Corps makes its
                                          violates the intent of the National                     approved for use with this NWP as of                  determination regarding those proposed
                                          Environmental Policy Act (NEPA) by                      the date of this notice. This RGL is                  categorical exclusions.
                                          enabling developers to avoid addressing                 available on the Internet at: http://                    One commenter asked that the ‘‘Note’’
                                          ecological impacts.                                     www.usace.army.mil/cw/cecwo/reg/rgls/                 at the end of this NWP be expanded to
                                             The process for approving categorical                rgl_05_07_v2.pdf. The lists of approved               list all of the agencies or departments
                                          exclusions for use with this NWP,                       categorical exclusion activities                      that have categorical exclusions
                                          including any approved categorical                      referenced in RGL 05–07 represents                    approved for use under this NWP. One
                                          exclusions that require pre-construction                impacts that are minor in nature, both                commenter believed that referencing
                                          notification, helps ensure that this NWP                individually and collectively. A limiting             RGLs in the NWP is not sufficient, and
                                          authorizes only those activities that                   principle on the nature of activities                 suggested that the list of approved
                                          result in minimal individual and                        exists because each government agency                 activities and pre-construction
                                          cumulative adverse effects on the                       has inherent and mission-specific                     notification requirements be wholly
                                          aquatic environment and the public                      responsibilities and projects, and                    included within the text of the permit
                                          interest. In addition, only the actions of              activities proposed by a specific agency              rather than referenced to a separate
                                          government agencies qualify for this                    within an approved categorical                        document. Another commenter stated
                                          NWP.                                                    exclusion are similar in nature. The                  that the pre-construction notification
                                             Another commenter suggested                          primary Federal action agency                         requirements are vague, and
                                          requiring pre-construction notification                 determines that the activities are                    recommended stating the pre-
                                          for activities adversely affecting more                 categorically excluded from further                   construction notification requirements
                                          than 1⁄10 acre of wetland, and                          environmental review. We believe that                 within the text of the NWP or listing the
                                          recommended adding a 1⁄3-acre limit to                  normally these activities will have no                specific RGL to refer to for those pre-
                                          this NWP for wetland impacts. One                       more than minimal adverse effects on                  construction notification requirements.
                                          commenter suggested that larger                         the aquatic environment, individually                    We have modified the ‘‘Note’’ by
                                          activities should be evaluated under                    and cumulatively. However, division                   adding a sentence listing the agencies
                                          individual permit procedures instead of                 and district engineers can condition                  with approved categorical exclusions.
                                          using this NWP, and suggested that                      such activities where necessary to                    Listing the approved activities and pre-
                                          large highway projects impacting                        ensure there will be no more than                     construction notification requirements
                                          wetlands should not be authorized                       minimal adverse effects on the aquatic                in the text of the permit is impractical,
                                          without the public involvement and the                  environment, or exercise discretionary                because of the lengths of those lists. In
                                          environmental safeguards of the                         authority to require an individual                    addition, simply referencing the list of
                                          404(b)(1) Guidelines. One commenter                     permit for the work.                                  RGLs is more useful because additional
                                          suggested that all projects requiring                      Two commenters asserted that the                   RGLs may be issued if more categorical
                                          stream channelization and any bridges                   NWP fails to comply with a statutory                  exclusions are approved for use with
                                          spanning less than 1.5 times the                        requirement that the activities have                  this NWP.
                                          bankfull width of a stream should be                    minimal impacts individually and                         One commenter asked that the text of
                                          evaluated through the individual permit                 cumulatively. One of these commenters                 this NWP be amended to acknowledge
                                          process.                                                said that the Corps’ estimate of 1,020                that state transportation agencies can
                                             The pre-construction notification                    acres of impact to waters of the United               legally assume the responsibility for
                                          thresholds established for the                          States represents a significant impact.               categorical exclusion determinations for
                                          categorical exclusions approved for use                    We disagree with this assertion. Pre-              the Federal Highway Administration
                                          with this NWP require case-by-case                      construction notification is required for             (FHWA).
                                          review for activities that have the                     certain approved categorical exclusions                  The current text of the NWP states
                                          potential to result in more than minimal                that apply to activities that have the                that activities ‘‘undertaken, assisted,
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                                          adverse effects on the aquatic                          potential to result in more than minimal              authorized, regulated, funded, or
                                          environment. For the same reasons, it is                individual and cumulative adverse                     financed’’ in whole or in part by a
                                          not necessary to impose an acreage limit                effects on the aquatic environment. In                Federal agency are eligible to be
                                          on this NWP or require individual                       general, impacts authorized by this                   considered by the Corps for possible
                                          permits for large highway projects that                 NWP are not significant because they                  approval as a categorical exclusion. We


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                            11119

                                          believe that the current text is sufficient             losses of wetland function and habitat                operation of existing green-tree
                                          and there is no need to restate or affirm               and other adverse impacts to the aquatic              reservoirs may be authorized by NWP
                                          the relationships between the FHWA                      environment. One commenter stated                     30. New green-tree reservoirs may be
                                          and the state transportation agencies,                  that there should be an acreage limit on              authorized by individual permits or
                                          which generally fall into one or more of                this NWP. Two commenters said that                    regional general permits. This NWP
                                          these categories.                                       wetland impacts should be limited to 2                prohibits the conversion of streams or
                                            This NWP is reissued as proposed.                     acres, and another commenter stated                   natural wetlands to other aquatic habitat
                                            NWP 24. Indian Tribe or State                         that stream impacts should be limited to              types or uplands, except for the
                                          Administered Section 404 Programs. We                   2,000 linear feet. Another commenter                  relocation of non-tidal waters on the
                                          proposed to add Indian tribes to this                   stated that the lack of an acreage limit              project site. We have also simplified the
                                          NWP, since they can be approved by                      on this NWP does not encourage                        language regarding the relocation of
                                          EPA to administer the section 404                       applicants to minimize adverse impacts.               non-tidal waters, including non-tidal
                                          program. No comments were received.                     This commenter suggested a 1⁄2 acre                   wetlands, on the project site. The
                                            This NWP is reissued as proposed.                     limit for wetland fills and a 300 linear              requirement that such relocations
                                            NWP 25. Structural Discharges. No                     foot limit for stream impacts.                        provide net gains in aquatic resource
                                          changes to this NWP were proposed.                         This NWP authorizes aquatic habitat                functions and services has been
                                          One commenter stated that it is difficult               restoration, establishment, and                       retained. Dam removal activities can be
                                          to perform these types of activities                    enhancement activities, provided those                authorized by this NWP, provided they
                                          without some minor related temporary                    activities result in net increases in                 meet the requirements for its use,
                                          construction activity. They suggest                     aquatic resource functions and services.              including that there is a net increase in
                                          adding a statement that allows minor                    Its use will not cause significant adverse            aquatic resource functions and services.
                                          construction activities.                                effects on the overall aquatic                        We have modified the third paragraph
                                            The construction of these structural                  environment. We do not believe there                  of this NWP to state that this NWP can
                                          members is usually accomplished by                      should be an acreage limit on this NWP,               be used to authorize the relocation of
                                          installing sheeting or pilings to                       because of the requirement for these                  non-tidal streams, provided there are
                                          construct forms, which are then filled                  projects to result in net increases in                net increases to aquatic resource
                                          with concrete, sand, rock, or other                     aquatic resource functions and services.              functions and services.
                                          materials. The installation of the                      Moreover, all activities authorized                      One commenter stated that using this
                                          sheeting or pilings usually does not                    under this NWP will be reviewed in                    NWP to authorize the relocation of non-
                                          result in a discharge of fill material that             advance by the Corps, either through the              tidal waters, including non-tidal
                                          would require section 404                               pre-construction notification                         wetlands, on the project site as long as
                                          authorization. However, in cases where                  requirement, or through the reporting                 there are net gains in aquatic resource
                                          temporary construction, access, and                     requirement for projects conducted                    functions and services, appears to
                                          dewatering activities are necessary to                  under authorities of other Federal                    contradict the provision prohibiting the
                                          complete the activities authorized by                   agencies.                                             conversion of streams or natural
                                          this NWP, those temporary activities                       One commenter recommended                          wetlands to another aquatic use. This
                                          may be authorized by NWP 33, a                          prohibiting establishment of open water               commenter indicated that there will be
                                          regional general permit, or an individual               areas in existing wetlands and streams,               different interpretations of the relative
                                          permit.                                                 and prohibiting the relocation of all                 value of certain aquatic resource
                                            The NWP is reissued as proposed.                      aquatic resources. One commenter                      functions and services. This commenter
                                            NWP 27. Aquatic Habitat Restoration,                  recommended removing the references                   also said that temporal lags associated
                                          Establishment, and Enhancement                          to waterfowl impoundments because                     with replacing certain wetland types,
                                          Activities. We proposed to modify this                  those impoundments may be considered                  such as forested wetlands, should be
                                          NWP by requiring reporting to the                       enhancements by some people. This                     considered.
                                          district engineer for those activities that             commenter said the establishment of                      The relocation of non-tidal waters on
                                          do not require pre-construction                         impoundments in streams or natural                    a project site does not necessarily
                                          notification. We also proposed to add                   wetlands should not be allowed for any                contradict the provision prohibiting the
                                          shellfish seeding to the list of examples               reason. One commenter requested                       conversion of streams or natural
                                          of activities authorized by this NWP,                   clarification whether this NWP                        wetlands to another aquatic habitat
                                          and remove the restriction limiting the                 authorizes green-tree reservoirs. One                 type, if comparable streams or wetlands
                                          use of this NWP only to those mitigation                commenter suggested allowing dam                      are restored or established elsewhere on
                                          banks that have been approved in                        removal activities to be authorized by                the project site. District engineers will
                                          accordance with the 1995 mitigation                     this NWP. One commenter said that this                determine compliance with these
                                          banking guidelines. In addition, we                     NWP should authorize stream                           provisions on a case-by-case basis, in
                                          proposed to prohibit the use of the NWP                 establishment, in cases where impaired                response to a pre-construction
                                          to authorize the conversion of natural                  or degraded streams can be relocated to               notification or a report. We recognize
                                          wetlands.                                               provide net benefits to the aquatic                   that relocating non-tidal waters may
                                            We have modified the first paragraph                  environment and the overall watershed.                result in temporal losses of certain
                                          of this NWP to more clearly present the                    We have modified the text of this                  aquatic resource functions and services,
                                          general categories of authorized                        NWP, by removing the reference to                     while the relocated waters undergo
                                          activities.                                             establishing an impoundment for                       ecosystem development. To comply
                                            One commenter supported the                           wildlife habitat. This NWP does not                   with these provisions of this NWP, the
                                          broadening of the title of this NWP to                  authorize green-tree reservoirs, because              net increases in aquatic resource
                                          include all aquatic habitats. One                       those activities generally degrade                    functions and services does not need to
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                                          commenter said that this NWP has the                    natural wetlands and would not result                 occur immediately after the NWP 27
                                          potential to authorize projects with                    in a net increase in aquatic resource                 activity has been constructed. However,
                                          significant adverse impacts. One                        functions and services. Discharges of                 those net increases need to occur over
                                          commenter said that this NWP should                     dredged or fill material into waters of               time through ecosystem development
                                          be revoked, because it could result in                  the United States for the continued                   processes as a result of a successful


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                                          11120                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          aquatic habitat restoration,                               One commenter suggested allowing                   district engineers with the opportunity
                                          establishment, or enhancement activity.                 the use of NWP 27 for the restoration                 to review aquatic habitat restoration,
                                             Two commenters noted that                            and enhancement of tidal streams and                  establishment, and enhancement
                                          conversion of streams or wetlands to                    tidal open waters. Another commenter                  activities conducted under the purview
                                          other aquatic uses is prohibited but                    said that this NWP should authorize the               of other government entities, to ensure
                                          conversions of waters to uplands are not                relocation and/or conversion of any                   that those activities result in net
                                          prohibited. Three commenters                            tidal waters, provided the proposed                   increases in aquatic resource functions
                                          supported the proposed language                         work would result in net increases in                 and services. The pre-construction
                                          prohibiting conversion of streams or                    aquatic resource functions and services.              notification requirements, as well as the
                                          natural wetlands to other aquatic uses.                 One commenter stated that this NWP                    reporting requirements, will help ensure
                                          Another commenter supported the                         should not authorize the construction of              that this NWP authorizes only activities
                                          language prohibiting conversion of                      impoundments or partial                               that comply with the terms and
                                          wetlands to other aquatic uses, but said                impoundments in tidal wetlands or                     conditions of this NWP, including
                                          that it may limit the usefulness of this                estuarine waters.                                     general condition 16, Tribal Rights.
                                          NWP, as it will not be able to authorize                   This NWP does not authorize the                       One commenter stated that the
                                          large ecosystem restoration projects that               restoration of tidal streams and tidal                reporting requirement for voluntary
                                          involve conversions of wetlands to other                open waters, but may authorize the                    NRCS-related wetland projects would be
                                          aquatic types, even where there are net                 restoration of riparian areas next to such            burdensome, and suggested that
                                          benefits for the aquatic environment.                   waters. The restoration of tidal streams              requiring NRCS documentation could
                                             We have modified this NWP to                         and other tidal open waters that involve              discourage voluntary wetland
                                          prohibit the conversion of streams or                   more than restoring riparian areas is                 restoration activities. Another
                                          natural wetlands to uplands. This                       more appropriately authorized by other                commenter said that there appears to be
                                          prohibition does not apply to projects                  Department of the Army permits, since                 little difference between the reporting
                                          involving the relocation of non-tidal                   those activities may result in more than              and pre-construction notification
                                          waters on the project site, as long as                  minimal adverse effects on the aquatic                provisions, and suggested requiring pre-
                                          those activities result in net increases in             environment. We do not believe it                     construction notifications for all NWP
                                          aquatic resource functions and services.                would be appropriate to modify this                   27 activities. Two commenters
                                          Large ecosystem restoration projects that               NWP to authorize those activities. We                 supported the requirement that copies
                                                                                                  maintain our position that this NWP                   of restoration agreements be submitted.
                                          involve conversions of aquatic habitat to
                                                                                                  should not authorize the relocation or                One commenter recommended requiring
                                          other aquatic uses are more
                                                                                                  conversion of tidal waters. Those                     pre-construction notifications and
                                          appropriately authorized through either
                                                                                                  activities may be authorized by                       interagency coordination for all projects
                                          regional general permits or individual
                                                                                                  individual permits or regional general                using NWP 27, to ensure that
                                          permits.
                                                                                                  permits. This NWP does not authorize                  development activities are not
                                             To prevent re-arrangement of                         the conversion of tidal waters to other               conducted as NWP 27 activities. A
                                          wetlands within a single development                    uses, such as impoundments or partial                 commenter objected to requiring the
                                          tract, one commenter asked that this                    impoundments.                                         submittal of restoration agreements to
                                          NWP prohibit the relocation of aquatic                     One commenter said that many                       fulfill the reporting requirement, citing
                                          habitat types on parcels where a local                  activities proposed as restoration                    privacy concerns. This commenter said
                                          planning document exists for the                        actually degrade habitat or result in a               that alternative types of information
                                          development. One commenter objected                     net loss of habitat, and stated that pre-             could be submitted instead to report
                                          to prohibiting the conversion of natural                construction notification should be                   proposed NWP 27 activities conducted
                                          wetlands to other aquatic uses on the                   required for all activities authorized by             under these agreements. One
                                          grounds that NWPs are intended to                       this NWP, to determine the beneficial                 commenter stated that the Corps and
                                          allow any activities with minimal                       effects and whether the activity is                   other agencies should be required to
                                          adverse effects. This commenter stated                  protective of tribal resources.                       approve wetland enhancement,
                                          that some conversions enhance                              Pre-construction notification is                   restoration, or establishment agreements
                                          ecosystem functions.                                    required for activities authorized by this            referenced in the reversion provisions of
                                             This NWP can be used to authorize                    NWP, except for those activities                      NWP 27.
                                          relocation of aquatic habitats on a                     conducted in accordance with binding                     The pre-construction notification
                                          project site, even those with                           agreements between certain Federal                    requirements are sufficient to ensure
                                          development activities, provided there                  agencies or their designated state                    proper implementation of NWP 27. We
                                          are net gains in aquatic resource                       cooperating agencies, voluntary wetland               have clarified the language in the NWP
                                          functions and services. These activities                activities documented by the NRCS or                  to reduce confusion. To avoid
                                          can be beneficial in cases where the                    USDA Technical Service Provider                       duplicative efforts by the government,
                                          development activity could have                         pursuant to NRCS Field Office                         pre-construction notification is not
                                          indirect adverse effects on the functions               Technical Guide standards, or the                     required for activities conducted under
                                          of existing aquatic resources on the                    reclamation of surface coal mining                    agreements or arrangements with other
                                          project site, and where relocating those                lands, in accordance with permits                     state or Federal government agencies.
                                          aquatic resources would result in                       issued by the Office of Surface Mining                Pre-construction notification is required
                                          enhanced ecosystem functions. We have                   or the applicable state agency. For those             for all other activities. The reporting
                                          revised the text of this NWP to prohibit                activities that do not require pre-                   requirement will provide a mechanism
                                          the conversion of natural wetlands to                   construction notification, reporting to               whereby the Corps can review proposed
                                          other uses, unless that conversion is                   the district engineer is required. In the             activities conducted under other agency
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                                          part of relocating non-tidal waters on                  latter cases, the district engineer can               programs, to ensure that they comply
                                          the project site. This NWP does not                     review the documentation provided                     with the terms and conditions of this
                                          authorize stream channelization, which                  through reporting to ensure that the                  NWP. We are modifying the reporting
                                          often involves extensive armoring and                   activity qualifies for NWP authorization.             requirement to allow the submittal of
                                          straightening of stream channels.                       The reporting requirements provide                    project descriptions and plans, in lieu of


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                                          binding agreements executed between                     construction of mitigation banks. One                 flowing waters where the activity will
                                          agencies and landowners.                                commenter requested clarification that                result in long-term stability and habitat
                                             It would be inappropriate to require                 this NWP could be used for wetland                    benefits.
                                          Corps approval of wetland                               mitigation banks, and one commenter                      It would be inappropriate to require
                                          enhancement, restoration, or                            asked that the NWP apply to all                       permittees to plant only native species
                                          establishment agreements executed and                   mitigation banking projects, not just                 at the project site. Native plant materials
                                          administered by other agencies. For                     those with a signed mitigation banking                may not be available for all of these
                                          those activities that require pre-                      agreement. Two commenters said that                   projects, and it is difficult to define
                                          construction notification and will result               the construction of mitigation banks                  precisely what constitutes a ‘‘native’’
                                          in the loss of greater than 1⁄2 acre of                 should not be authorized by NWP 27,                   species. The activities authorized by
                                          waters of the United States, agency                     but should be authorized by individual                this NWP are required to result in net
                                          coordination is required (see paragraph                 permits instead. One commenter stated                 increases in aquatic resource functions
                                          (d) of general condition 27).                           that it would be acceptable to allow the              and services, which should benefit
                                             One commenter suggested modifying                    use of NWP 27 for mitigation bank                     anadromous fish species. However,
                                          the reversion, reporting, and notification              construction with a caveat that impacts               district engineers will review pre-
                                          provisions by referencing actions                       associated with mitigation bank                       construction notifications and other
                                          documented by ‘‘NRCS or USDA                            construction be deducted from any                     reported activities to determine if the
                                          Technical Service Provider pursuant to                  available credit the mitigation bank                  proposed aquatic habitat restoration,
                                          NRCS Field Office Technical Guide                       develops. One commenter requested                     establishment, or enhancement activity
                                          Standards’’ instead of ‘‘NRCS                           that this NWP contain language stating                would have more than minimal adverse
                                          regulations,’’ since many of these                      that compensatory mitigation is                       effects on anadromous fish species, or
                                          wetland restoration, enhancement, and                   required for activities authorized by                 require consultation under Section 7 of
                                          establishment activities are performed                  NWP 27, but another commenter                         the Endangered Species Act. In
                                          by technical service providers, who                     suggested that no compensatory                        addition, division and district engineers
                                          must be certified by NRCS and comply                    mitigation should be required for                     can develop regional conditions or case-
                                          with the Field Office Technical Guide                   impacts associated with construction of               specific conditions to ensure that
                                          standards. We concur with this                          compensatory mitigation projects.                     potential impacts to anadromous fish
                                          recommendation, and have made                              This NWP can be used to authorize                  are minimal, or exercise discretionary
                                          appropriate changes to the text of this                 aquatic resource restoration,                         authority to require an individual
                                          NWP.                                                    establishment, and enhancement                        permit for the work if impacts are
                                             One commenter said that replacing                    activities necessary for the construction             expected to be more than minimal.
                                          the word ‘‘values’’ with ‘‘services’’                   of mitigation banks. It is not necessary              Compliance with the other general
                                          demeans the functions provided by a                     for the mitigation bank proponent to                  conditions for the NWPs, including
                                          healthy ecosystem, unless the term                      obtain a signed mitigation banking                    general condition 9, Management of
                                          ‘‘functions’’ is specifically retained.                 instrument prior to conducting the NWP                Water Flows, is required, though general
                                          Another commenter remarked that                         27 activity, but the mitigation bank                  condition 9 specifically allows activities
                                          replacing the word ‘‘values’’ with                      proponent needs to understand that                    that alter the pre-construction course,
                                          ‘‘services’’ is inconsistent with the                   activities conducted prior to approval of             condition, capacity, and location of
                                          common industry vernacular. They                        a banking instrument may or may not be                open waters if they benefit the aquatic
                                          suggest using the word ‘‘functions’’                    approved in any final instrument. The                 environment.
                                          instead of ‘‘services.’’                                Corps thus recommends that                               One commenter requested
                                             We are retaining the term ‘‘functions’’              construction of mitigation banks not                  clarification of what constitutes a
                                          in the text of this NWP, and are                        begin until a final instrument has been               ‘‘small’’ nesting island, and requested
                                          replacing the word ‘‘values’’ with                      signed. Requiring compensatory                        that the NWP state that approved water
                                          ‘‘services’’ because ecosystem services                 mitigation for losses of waters of the                quality standards cannot be violated
                                          provide a more objective measure of the                 United States as a result of NWP 27 is                during construction of small nesting
                                          importance of aquatic resource                          at the discretion of the district engineer.           islands. Another commenter said that
                                          functions to human populations. The                     The crediting of a mitigation bank will               pre-construction notification should be
                                          terms ‘‘functions’’ and ‘‘services’’ are                be determined by the district engineer                required for the construction of small
                                          not equivalent, and therefore it would                  during the approval process for the                   nesting islands in special aquatic sites.
                                          not be appropriate to replace the term                  mitigation banking instrument. Any                    One commenter asked for a definition of
                                          ‘‘services’’ with ‘‘functions.’’ Services               adverse impacts to aquatic resources                  the term ‘‘enhancement activities.’’ One
                                          are the benefits that humans derive from                resulting from construction of the bank               commenter suggested requiring
                                          the functions performed by wetlands                     would certainly be considered in that                 monitoring of stream restoration
                                          and other aquatic resources. The term                   determination.                                        projects, with mandatory corrective
                                          ‘‘services’’ is now being used in place of                 Two commenters said that this NWP                  actions for projects that are not
                                          ‘‘values’’ in the ecological economics                  should require permittees to plant                    successful.
                                          literature, because of the difficulty in                native species at the site. They said that               The district engineer has the
                                          assigning value to ecosystem services.                  the proposed language contains too                    discretion to determine what a ‘‘small
                                          As discussed in the September 26, 2006,                 much flexibility. One commenter said                  nesting island’’ is for the purposes of
                                          Federal Register notice, values may                     that NWP 27 should not authorize                      this NWP. Either pre-construction
                                          relate to either monetary or non-                       activities in waters inhabited by                     notification or reporting is required for
                                          monetary measures, but services can be                  anadromous fish. One commenter stated                 all activities authorized by this NWP,
                                          described in physical terms that are                    that the U.S. Fish and Wildlife Service               which will provide district engineers
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                                          easier to evaluate and address, where                   must concur with projects in which                    with opportunities to review all
                                          necessary, in NWP authorization letters                 machinery must work in waters where                   proposed activities, including the
                                          and special permit conditions.                          endangered or threatened species are                  construction of small nesting islands, to
                                             Two commenters supported allowing                    present. One commenter indicated that                 determine those activities comply with
                                          the use of NWP 27 to authorize the                      this NWP should authorize work in                     the terms and conditions of the NWP.


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                                          11122                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          The term ‘‘enhancement’’ is defined in                     We believe that limiting the use of                recommended removing the pre-
                                          the ‘‘Definitions’’ section of the NWPs.                this NWP for the sole purpose of                      construction notification requirement
                                          District engineers have the authority to                restoring streams to historic conditions              for shellfish activities that have the
                                          require additional monitoring or                        would be overly restrictive, and would                approval of other government agencies
                                          corrective measures on a case-specific                  effectively prohibit its use for other                with resource management
                                          basis. We believe it is unnecessary to                  beneficial restoration activities. Further,           responsibilities. Two commenters said
                                          restate those authorities in the text of                the pre-construction notification and                 that state natural resource agencies
                                          this NWP.                                               reporting requirements for this NWP                   should be exempted from the pre-
                                             One commenter said that this NWP                     will help ensure that activities                      construction notification requirements if
                                          should prohibit the widening or                         conducted under this NWP comply with                  the shellfish seeding activity is done
                                          straightening of stream channels, the                   the purposes and intent of the NWP, as                over an unvegetated bottom, since those
                                          removal of gravel bars, the destruction                 well as its terms and condition.                      activities are already addressed by other
                                          of woody vegetation, and the in-stream                     Two commenters said that the                       state and Federal permit processes. Two
                                          use of bulldozing or heavy equipment.                   prohibition against stream                            other commenters expressed concern
                                          Another commenter stated that NWP 27                    channelization conflicts with general                 that the proposed changes to the NWP
                                          should require the use of natural stream                condition 9, Management of Water                      would adversely affect community-
                                          channel design for in-stream work. Two                  Flows, which allows stream restoration                based shellfish restoration efforts,
                                          commenters suggested that this NWP                      and relocation for some NWP activities.               including locally-based oyster
                                          should not authorize the use of riprap                  One commenter suggested that the                      restoration programs. They said that the
                                          or other armoring. One commenter                        Corps remove the channelization                       pre-construction notification
                                          suggested limiting the use of this NWP                  restriction from NWP 27 and expand the                requirements, or requiring any permit
                                          to restoration of a stream to its historic              definition of ‘‘stream channelization’’ to            for shellfish restoration, would be
                                          non-degraded condition to prevent the                   authorize activities beneficial to the                overly burdensome and would
                                          use of this NWP for construction of                     aquatic environment.                                  adversely affect community-based
                                                                                                     As noted above, general condition 9                programs that are already operating with
                                          flood control projects.
                                                                                                  allows the use of any NWP for projects                volunteer staffs, minimal budgets, and
                                             This NWP does not authorize stream                   that alter the pre-construction course,               limited resources.
                                          channelization activities. It may be                    condition, capacity, and location of                     We are providing a definition of
                                          necessary to temporarily impact gravel                  open waters if they benefit the aquatic               ‘‘shellfish seeding’’ in the ‘‘Definitions’’
                                          bars or vegetation during the                           environment. The removal of the stream                section of the NWPs. This definition
                                          construction of stream restoration and                  channelization prohibition from NWP                   was derived from the definition
                                          enhancement activities. After the                       27 could inadvertently allow projects to              provided in the preamble discussion for
                                          construction of the stream restoration or               proceed under this NWP that have more                 proposed NWP D, Commercial Shellfish
                                          enhancement project, the stream                         than minimal adverse impacts on the                   Aquaculture Activities (see 71 FR
                                          channel should move water and                           aquatic environment. We also believe                  56275). Shellfish aquaculture and
                                          sediment in a manner that will result in                that it is unnecessary to modify the                  restoration activities require Department
                                          a channel morphology that provides                      definition of stream channelization as                of the Army authorization, if they
                                          habitat for a diverse community of                      suggested because the definition                      involve discharges of dredged or fill
                                          species. That restored or enhanced                      provides an accurate and concise                      material into waters of the United States
                                          habitat will include gravel bars, if the                description of what constitutes stream                and/or structures or work in navigable
                                          bed load carried by the stream includes                 channelization.                                       waters of the United States. On-going
                                          a sufficient proportion of gravel. In                      One commenter recommended                          commercial shellfish aquaculture
                                          addition riparian vegetation will                       limiting the use of NWP 27 to projects                activities may be authorized by NWP 48
                                          normally be planted or allowed to grow                  conducted by or sponsored by state or                 and shellfish restoration activities may
                                          back to replace the impacted riparian                   federal agencies. One commenter                       be authorized by NWP 27. New
                                          vegetation after construction activities                recommended removing the reference to                 commercial shellfish aquiculture
                                          have been completed. In-stream use of                   prior converted croplands.                            activities may be authorized by regional
                                          heavy equipment is not prohibited,                         We disagree that use of this NWP                   general permits or individual permits.
                                          because such equipment is usually                       should be limited to activities                       The pre-construction notification
                                          necessary to conduct stream restoration                 conducted or sponsored by state or                    requirement is necessary for shellfish
                                          and enhancement activities. In response                 federal agencies, however, projects not               habitat restoration activities, except
                                          to a pre-construction notification, or the              conducted pursuant to authorities of                  those conducted under one of the other
                                          review of the other Federal agency                      other agencies do require a pre-                      listed authorities, to ensure that those
                                          agreement, the district engineer will                   construction notification. The reference              projects comply with the terms and
                                          determine whether the proposed                          to prior converted croplands in the                   conditions of this NWP and do not
                                          activity complies with the terms and                    reversion provision is necessary, since               cause more than minimal adverse
                                          conditions of the NWP, including the                    prior converted croplands are not                     effects. However, the Corps does not
                                          requirement for the activity to result in               considered to be waters of the United                 believe that the PCN requirement is
                                          net increases in aquatic resource                       States (see 33 CFR 328.3(a)(8)).                      overly burdensome and it should not
                                          functions and services. It would be                        One commenter suggested including a                limit the ability of community-based
                                          inappropriate to require, in the text of                definition for shellfish seeding in the               programs to conduct such activities.
                                          this NWP, specific design or                            NWP. One commenter questioned                            One commenter opposed modifying
                                          construction methods, or prohibit the                   whether the Corps has regulatory                      this NWP to authorize shellfish
                                          use of riprap or other armoring.                        jurisdiction over shellfish aquaculture               restoration activities because they
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                                          Armoring using riprap or other                          and restoration activities. Another                   believe that these projects can have
                                          materials can be a necessary component                  commenter requested clarification                     more than minimal impact on benthic
                                          of beneficial aquatic habitat restoration,              whether pre-construction notification is              habitat. One commenter said that
                                          establishment, and enhancement                          required for shellfish seeding authorized             shellfish seeding should not be
                                          projects.                                               by this NWP. One commenter                            authorized by this NWP. Another


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11123

                                          commenter suggested that fill placement                 eliminate the need for those agencies to              applicable waters for this NWP, by
                                          for shellfish seeding or shellfish bed                  obtain separate permits for numerous                  prohibiting its use to authorize
                                          preparation activities should not qualify               individual projects.                                  discharges of dredged or fill material
                                          for any NWP and should only be                             This NWP does not authorize                        into non-tidal wetlands adjacent to tidal
                                          evaluated under individual permit                       commercial aquaculture activities. It                 waters. In addition, we proposed to
                                          processes. Several commenters                           authorizes shellfish habitat restoration              require pre-construction notification for
                                          recommended that shellfish seeding                      activities, including shellfish seeding,              all activities.
                                          should be authorized by this NWP. A                     that are conducted to restore                            One commenter requested that a
                                          number of commenters stated that                        populations of shellfish in navigable                 definition of ‘‘residential property’’ be
                                          shellfish seeding can be used to protect                waters of the United States. Although                 provided. This commenter also said that
                                          or restore valuable aquatic habitats since              these restored shellfish populations may              this NWP should include a provision
                                          construction of oyster reefs has been                   be harvested at a later time by licensed              prohibiting its use with NWP 39 to
                                          used to attenuate wave energy as part of                fisherman, the objective of the activities            authorize mixed use developments. Two
                                          coastal restoration strategies.                         authorized by this NWP must be to                     commenters objected to including
                                            The restoration of oyster habitat, as                 restore populations of shellfish in                   multiple-unit residential developments
                                          well as the habitat of other shellfish                  navigable waters of the United States.                in NWP 29 because they felt it is
                                          species, usually provides substantial                   This NWP does not authorize structures                inconsistent with the original intent of
                                          benefits to the overall aquatic                         or work, such as nets and anchors, that               NWP 29. Several commenters stated that
                                          environment. Shellfish help improve                     are used to reduce or eliminate                       including multiple-unit residential
                                          water quality and other habitat                         predation of shellfish growing in these               development would lead to problems
                                          characteristics of estuarine and marine                 restored habitats. On-going commercial                with water quality certifications or local
                                          waters. Shellfish seeding is often a                    aquaculture activities may be authorized              government decisions. Two commenters
                                          necessary component of restoration                      by NWP 48, regional general permits, or               said that single-family and multi-unit
                                          activities, when the objective is to                    individual permits. New commercial                    developments are not similar in nature
                                          increase populations of shellfish.                      aquaculture activities may be authorized              while another questioned the need and
                                          District engineers will review pre-                     by regional general permits or                        the rational for the proposed change.
                                          construction notifications or agreements                individual permits. This NWP                             This NWP utilizes the commonly
                                          with other agencies to ensure that these                authorizes single and complete shellfish              accepted definition of what constitutes
                                          activities result in minimal individual                 habitat restoration activities. Regional              a residential property. We do not agree
                                          and cumulative effects on the aquatic                   general permits or individual permits                 that there should be a prohibition
                                          environment and other public interest                   may be issued by district engineers to                against combining NWPs 29 and 39 to
                                          factors. In response to a pre-                          authorize shellfish restoration programs.             authorize mixed use developments,
                                          construction notification, the district                    This NWP is reissued, with the                     because the terms and conditions of
                                          engineer can add special conditions to                  modifications discussed above.                        those NWPs, including the pre-
                                          the NWP authorization or exercise                          NWP 28. Modifications of Existing                  construction notification requirements
                                          discretionary authority and require an                  Marinas. No changes were proposed for                 and general condition 24, Use of
                                          individual permit.                                      this NWP. One commenter said that                     Multiple Nationwide Permits, will help
                                            One commenter remarked that                           modifications in special aquatic sites,               ensure that those activities will result in
                                          shellfish seeding practices could be                    such as vegetated shallows or coral                   minimal individual and cumulative
                                          considered an aquaculture activity, and                 reefs, should require pre-construction                adverse effects on the aquatic
                                          said that the requirements of NWP 27                    notification. This commenter also                     environment and other public interest
                                          could be a significant barrier to                       requested clarification whether this                  review factors. As discussed in the
                                          aquaculture development. Another                        NWP authorizes pile driving, and                      preamble of the September 26, 2006,
                                          commenter indicated that projects                       recommended requiring pre-                            Federal Register notice, the proposed
                                          solely associated with shellfish                        construction notification for such                    changes effectively eliminate the
                                          restoration could be authorized by NWP                  activities.                                           previous NWP 29. Previously, single
                                          27, but suggested that it would be more                    This NWP authorizes the installation               family residential projects could choose
                                          appropriate to authorize such activities                of piles for the reconfiguration of                   between NWPs 29 and 39. NWP 39 had
                                          under the proposed NWP for                              marinas. The reconfiguration of existing              a higher acreage limit, but NWP 29
                                          commercial shellfish aquaculture                        marinas generally results in minimal                  could allowed activities in wetlands
                                          activities. One commenter expressed                     individual and cumulative adverse                     adjacent to tidal waters. We have
                                          concern that NWP 27 may overlap with                    effects, since these activities are limited           determined that that all residential
                                          NWP 48. One commenter stated that                       to areas currently used for marinas.                  projects using an NWP, whether single-
                                          some oyster restoration and                             Therefore, it is unnecessary to require               family or multi-family, should face the
                                          enhancement is done by commercial                       pre-construction notification for these               same set of requirements. In particular,
                                          shellfishing operations that harvest only               activities. However, division engineers               we have determined that residential
                                          wild oysters. In some cases, shellfish                  can regionally condition this NWP to                  projects in wetlands adjacent to tidal
                                          husbandry or restoration is required by                 require pre-construction notification for             waters should not be authorized through
                                          other regulatory agencies, and the                      activities in certain areas.                          an NWP, so we are combining all
                                          commenter stated that neither NWP 27                       This NWP is reissued as proposed.                  residential development activities in
                                          nor NWP 48 allow this activity. One                        NWP 29. Residential Developments.                  NWP 29 and eliminating its use in
                                          commenter asked if each oyster bed                      We proposed to modify this NWP by                     wetlands adjacent to tidal waters. We
                                          restoration would require a separate                    incorporating the residential                         believe the 1⁄2 acre limit previously
                                          permit, or could an entity apply for a                  development provisions of NWP 39, so                  included in NWP 39 will ensure that
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                                          single permit to cover all of their                     that there would be one NWP to                        projects undertaken only in non-tidal
                                          shellfish restoration projects. They                    authorize single unit and multiple unit               waters and their adjacent wetlands will
                                          recommended establishing a single                       residential developments, including                   not have more than minimal adverse
                                          permit that any state natural resource                  residential subdivisions. We also                     effects. Limits for multi-family
                                          agency could use at any time to                         proposed to reduce the scope of                       residential projects have not changed,


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                                          11124                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          these activities have merely been shifted               graduated pre-construction notification               appropriateness and practicability of
                                          into NWP 29. States concerned with                      threshold based on the size of the                    requiring riparian areas, as well as their
                                          multiple unit residential developments                  overall development.                                  width, in the implementation of general
                                          may add stipulations to their water                        We are retaining the requirement for               condition 20, Mitigation.
                                          quality certifications that differentiate               pre-construction notification for all                    Three commenters said that
                                          between single-family and multi-unit                    activities authorized by this NWP.                    residential developments are not water
                                          developments. Local governments can                     Although this will result in an increase              dependent activities, and therefore,
                                          address their concerns over residential                 in the number of pre-construction                     under the Section 404(b)(1) Guidelines,
                                          development through their planning                      notifications submitted to district                   an NWP should not be issued unless all
                                          and zoning processes. Also, the Corps is                engineers, we do not believe that it will             practicable alternatives have been
                                          expanding the pre-construction                          be a substantial increase, since many                 considered. Some commenters objected
                                          notification requirement to include all                 permittees proposing to construct                     to authorizing attendant features by
                                          projects authorized under this NWP, to                  residential developments in the past                  NWP 29, because they may not be water
                                          enhance our ability to identify projects                have submitted verification requests for              dependent or there may be secondary
                                          that may have more than minimal                         NWP 39 authorization even when not                    impacts associated with the
                                          adverse effects.                                        required to do so. The NWP 29 issued                  development.
                                             One commenter suggested we add                       in 2002 require pre-construction                         An activity that is not water
                                          ‘‘single-unit residential subdivision’’ to              notification for all proposed single                  dependent may still be authorized by
                                          the list of authorized activates in the                 family homes. The pre-construction                    NWP as long as an appropriate Section
                                          first sentence.                                         notification threshold will also help                 404(b)(1) Guidelines analysis is
                                             We have added the phrase                             ensure compliance with general                        conducted when the NWP is issued. The
                                          ‘‘residential subdivision’’ to the list of              condition 17, Endangered Species, and                 decision documents for all NWPs,
                                          activities authorized by this NWP. This                 general condition 18, Historic                        including this NWP, that authorize
                                          NWP authorizes residential                              Properties. A graduated pre-                          discharges under Section 404 of the
                                          subdivisions with multiple single-                      construction notification requirement                 Clean Water Act include a Section
                                          family units or multiple-family units.                  would be unnecessarily complex and                    404(b)(1) Guidelines analysis.
                                             Several commenters objected to                       would not provide as much assurance                      Two commenters objected to
                                          raising the acreage limit from 1⁄4 acre to              that only activities with no more than                including septic fields as attendant
                                          1⁄2 acre. One commenter said that the 1⁄2                                                                     features and three commenters objected
                                                                                                  minimal adverse effects are authorized.
                                          acre limit will result in substantial                      Many commenters discussed the 300                  to including sports fields and golf
                                          cumulative losses of waters of the                      linear foot limit for stream bed impacts.             courses as attendant features. One
                                          United States. Two comments                             Those comments are discussed in a                     commenter requested a definition of the
                                          recommended acreage limits of one or                    separate section of the preamble. We are              term ‘‘integral part’’ to reduce the
                                          two acres. One commenter asked why                      retaining the 300 linear foot limit for               potential for authorizing golf courses
                                          the 1⁄2 acre limit is not for associated                stream bed impacts, as well as the                    that are not directly associated with the
                                          multi-unit developments when it is                      ability for district engineers to provide             residential development. One
                                          expressed as the limit for single-family                written waivers of the 300 linear foot                commenter objected to the use of the
                                          residences.                                             limit for losses of intermittent and                  NWP for large subdivisions, because of
                                             As noted above, the effective acreage                ephemeral stream beds.                                potential impacts due to sprawl, traffic,
                                          limit for residential projects has not                     Several commenters said that this                  and degradation of water quality.
                                          been raised. We have simply removed                     NWP should retain the requirement to                     Septic fields are often necessary
                                          the option of using an NWP with a 1⁄4                   maintain sufficient buffers adjacent to               attendant features for residences, and
                                          acre threshold to authorize single-family               all open water bodies, such as streams.               should be authorized where part of a
                                          projects in wetlands adjacent to tidal                  Some commenters stated that a                         single and complete project. Sports
                                          waters. Through the review of pre-                      minimum buffer width should be                        fields and golf courses may also be
                                          construction notifications, district                    required. One commenter supported the                 integral attendant features of residential
                                          engineers will monitor the use of this                  removal of the buffer requirement and                 developments. District engineers will
                                          NWP so that more than minimal                           addressing the need for riparian areas                determine, in response to pre-
                                          cumulative adverse effects do not occur.                through general condition 20,                         construction notifications, whether golf
                                          We disagree that increasing the acreage                 Mitigation.                                           courses are integral parts of the
                                          limit to one to two acres would result                     The establishment and maintenance                  residential development. Impacts of
                                          in activities that have minimal impacts                 of riparian areas next to streams and                 large subdivisions will be considered
                                          on the aquatic environment. The 1⁄2 acre                other open waters will be required by                 during the pre-construction notification
                                          limit applies to any type of residential                district engineers as compensatory                    review process. If such projects would
                                          subdivision (single-family, multi-family,               mitigation where necessary to ensure                  have more than minimal adverse effects,
                                          or a combination of both), as it did                    that the authorized work results in                   these will be addressed through project-
                                          previously when these projects were                     minimal individual and cumulative                     specific special conditions or by
                                          authorized by NWP 39.                                   adverse effects on the aquatic                        requiring an individual permit.
                                             Some commenters objected to                          environment. Although the NWP 29                         One commenter requested that we
                                          requiring pre-construction notification                 issued in 2002 contained a requirement                define ‘‘subdivision’’ as an ‘‘area that
                                          for all activities, and suggested changing              to establish sufficient vegetated buffers,            involves all residences that share the
                                          the pre-construction notification                       the counterpart language in the 2002                  attendant features.’’ One commenter
                                          threshold to 1⁄10 acre. Three commenters                NWP 39 reflected the use of vegetated                 urged that phased developments be
                                          proposed a 1⁄10 acre pre-construction                   buffers as components of the                          prohibited since they can result in
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                                          notification threshold for single-family                compensatory mitigation plan for the                  impacts to waters that otherwise can be
                                          developments. Three commenters                          NWP 39 activity, if there were streams                avoided with comprehensive planning
                                          supported the proposed pre-                             or other open waters on the project site.             and permitting.
                                          construction notification threshold. One                District engineers will make                             Defining the term ‘‘subdivision’’ is
                                          commenter suggested establishing a                      determinations regarding the                          unnecessary as there is little confusion


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                                          surrounding the term. Phased                            residential developments in coastal                   adverse effects on the aquatic
                                          developments can be authorized by the                   areas in the eastern United States.                   environment.
                                          NWP, provided that each phase is a                         Potential impacts to salmon species                   One commenter recommended
                                          single and complete project and has                     are more appropriately addressed                      imposing a 1⁄2 acre limit on activities
                                          independent utility. When reviewing                     through regional conditions. Division                 conducted by private landowners. One
                                          pre-construction notifications, district                engineers may regionally condition this               commenter recommended adding pre-
                                          engineers will take into account                        NWP to restrict or prohibit its use in                construction notification requirements
                                          individual and cumulative impacts of                    waters inhabited by salmonids.                        to this NWP, so that district engineers
                                          phased developments. We strongly                        Impoundments may be authorized as                     can review proposed activities to ensure
                                          support comprehensive planning efforts                  attendant features, after reviewing the               that they comply with the terms and
                                          undertaken by local governments as a                    pre-construction notification. Section                conditions of the NWP. One commenter
                                          means of reducing impacts to the                        404 permits are required for discharges               indicated that this NWP should
                                          aquatic environment. Where the                          of dredged or fill material into waters of            authorize moist soil management
                                          cumulative effects of phased projects                   the United States to construct                        activities for native vegetation that are
                                          would be more than minimal, these will                  residential developments. Such                        not necessarily for wildlife use.
                                          be addressed through project-specific                   activities do not qualify for exemptions                 Since this NWP authorizes only on-
                                          special conditions or by requiring an                   under Section 404(f)(1) of the Clean                  going wildlife management activities
                                          individual permit.                                      Water Act.                                            involving moist soil management, we do
                                             Four commenters requested that the                      This NWP is reissued with the                      not believe it is necessary to impose an
                                          NWP authorize projects in non-tidal                     modifications discussed above.                        acreage limit or require pre-construction
                                          wetlands adjacent to tidal waters, while                   NWP 30. Moist Soil Management for                  notification for these activities. Division
                                          two comments supported the proposal                     Wildlife. We proposed to modify this                  engineers can regionally condition this
                                          to prohibit the use of the NWP in those                 NWP to allow any landowner to use this                NWP to require pre-construction
                                          areas. One commenter requested a                        NWP to authorize discharges of dredged                notification, if there are concerns for the
                                          definition of the term ‘‘adjacent.’’ Two                or fill material into non-tidal waters of             aquatic environment or other public
                                          commenters objected to removal of                       the United States for the purpose of                  interest review factors that may need to
                                          language concerning minimization of                     managing wildlife habitat and feeding                 be addressed through case-specific
                                          on-site and off-site impacts, such as                   areas.                                                review of these activities. Moist soil
                                          avoiding flooding of adjacent lands.                       Some commenters supported the                      management activities conducted
                                             Limiting the use of this NWP to non-                 proposed changes to this NWP, since it                primarily for growing native plants may
                                          tidal waters of the United States, and                  will facilitate the production of large               be authorized by other NWPs, regional
                                          prohibiting its use in non-tidal wetlands               amounts of wetland/wildlife habitat and               general permits, or individual permits.
                                          adjacent to tidal waters is necessary to                conserve the Nation’s native wildlife                 Restoration of wetland meadows,
                                          ensure that this NWP authorizes only                    populations. However, other                           forested wetlands, and other native
                                          those activities with minimal individual                commenters expressed concern about                    plant communities may also be
                                          and cumulative adverse effects on the                   the use of this NWP by private                        authorized by NWP 27.
                                          aquatic environment. Development                        landowners, because they may be                          One commenter suggested changing
                                          along coastal waters is a growing                       creating impoundments to increase                     the title of this NWP to ‘‘Maintenance of
                                          concern with significant potential to                   wildlife habitat. One commenter                       Existing Moist Soil Management Areas
                                          cause more than minimal adverse                         recommended requiring interagency                     for Wildlife.’’ One commenter
                                          effects, particularly cumulatively. Such                coordination to provide guidance to                   recommended modifying the ‘‘Note’’ at
                                          projects can be authorized by an                        landowners and to help ensure land                    the end of this NWP to acknowledge
                                          individual permit following appropriate                 cover types are not detrimentally                     that maintenance may be exempt under
                                          environmental review. The term                          converted to other land cover types. One              Section 404(f) of the Clean Water Act.
                                          ‘‘adjacency’’ is defined at 33 CFR                      commenter said that expanding the                        We do not agree that it is necessary
                                          328.3(c). For the NWPs, including NWP                   NWP to apply to all landowners would                  to change the title of this NWP, because
                                          29, requirements to avoid and minimize                  result in more than minimal cumulative                the text of the NWP clearly states that
                                          impacts to waters of the United States                  adverse effects.                                      is authorizes only soil management for
                                          are addressed through general condition                    We believe that it is appropriate to               on-going, site-specific, wildlife
                                          20, Mitigation.                                         expand the use of this NWP to private                 management activities. We have
                                             District engineers will review pre-                  landowners that have an interest in                   modified the ‘‘Note’’ to include a
                                          construction notifications to ensure that               attracting and supporting various                     statement concerning the section 404(f)
                                          all practicable on-site avoidance and                   species of wildlife on their land. This               exemption.
                                          minimization has been accomplished. In                  NWP does not authorize the                               This NWP is reissued with the
                                          response to a pre-construction                          construction of impoundments, because                 modification discussed above.
                                          notification, the district engineer may                 it does not authorize new roads, dikes,                  NWP 31. Maintenance of Existing
                                          require compensatory mitigation to                      and water control structures. We believe              Flood Control Facilities. We proposed to
                                          ensure that the authorized activity                     that it is not necessary to require                   remove the last sentence of the first
                                          results in minimal adverse                              interagency coordination for these                    paragraph of this NWP. In addition, we
                                          environmental effects (see 33 CFR                       activities because only activities that do            proposed to add levees to the list of
                                          330.1(e)(3)).                                           not result in a net loss of aquatic                   features that can be maintained through
                                             One commenter said that NWP 29                       resource functions and services are                   the authorization provided by this NWP.
                                          should not be issued because it results                 authorized. The terms and conditions                     A few commenters stated support for
                                          in more than minimal adverse impacts                    and the ability of division engineers to              the addition of levees to the list of
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                                          particularly when salmonids are                         impose regional and case-specific                     features that can be maintained with
                                          present. One commenter stated that this                 conditions on this NWP, will ensure                   authorization under this NWP. In
                                          NWP should not authorize                                that the activities authorized by this                addition, one commenter recommended
                                          impoundments. One commenter said                        NWP will result in no more than                       that the Corps exempt or develop a
                                          that there should be an exemption for                   minimal individual and cumulative                     streamlined NWP for federally


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                                          constructed or funded levees where                      In addition, the inclusion of certain                 word ‘‘significant’’ in Corps
                                          maintenance responsibilities for those                  BMPs may reduce the impacts to the                    documentation and suggested that it be
                                          levees have reverted to a local agency.                 aquatic environment and, as a result, the             changed. Another commenter said that
                                             We believe that the NWP program is                   required one-time mitigation associated               this NWP should not authorize actions
                                          already a streamlined permit process                    with establishing the baseline. The                   that need to be taken because of neglect.
                                          and discharges associated with federally                BMPs submitted with the maintenance                      We believe that the use of the word
                                          constructed and funded flood control                    baseline documentation do not preclude                ‘‘significantly’’ in this NWP is not
                                          projects which have reverted to a local                 the Corps from requiring additional                   contrary to the Regulatory Guidance
                                          agency should still be subject to the                   BMPs that might be necessary to ensure                Letter because it describes a level of
                                          requirements of this NWP, including the                 that the maintenance activity results in              reduction in flood capacity and does not
                                          establishment of a maintenance                          minimal adverse effects on the aquatic                relate to any determination of
                                          baseline. At this time, we believe it is                environment. Regarding mitigation                     environmental impacts. If a flood
                                          necessary to conduct a site specific                    approval, we believe the proposed text                control facility can be considered
                                          verification through the pre-                           of this NWP clearly states that for this              abandoned because of neglect, then the
                                          construction notification process to                    NWP, the district engineer will not                   NWP would not authorize the work
                                          ensure that the adverse effects of the                  delay necessary maintenance so long as                needed to reconstruct that facility.
                                          project are no more than minimal. The                   the district engineer and permittee                      Another commenter requested that
                                          Corps has no authority to exempt                        establish a schedule for identification,              the fill associated with beaver dam
                                          discharges of dredged or fill material                  approval, development, construction                   control and maintenance be added to
                                          that occur in conjunction with the                      and completion of any such required                   the list of features authorized by this
                                          maintenance of the facility, or to waive                mitigation. It also states that work can              NWP. While the Corps agrees that the
                                          any requirement for necessary                           begin before approval of the                          maintenance of beaver dam control and
                                          mitigation. The inclusion of levees in                  maintenance baseline in emergency                     maintenance structures may be
                                          this NWP does not preclude                              situations.                                           authorized by this NWP, this NWP does
                                          maintenance of levees that is allowed                      Two commenters opposed adding                      not authorize fills associated with the
                                          under other NWP authorizations, such                    levees to the list of features that can be            construction of new structures.
                                          as NWP 3.                                               maintained through authorization by                      Two commenters opposed removing
                                             One commenter stated that, as flood                  this NWP. One of these commenters                     the last sentence in the first paragraph
                                          control projects constructed by the                     believed that the change constitutes                  of this NWP (regarding types of
                                          Corps and transferred to a non-federal                  more than a wording change, because                   maintenance activities that do not
                                          sponsor have a Corps-developed                          levees are large scale structures with                require section 404 permits) because
                                          Operations and Maintenance (O&M)                        impacts that require a thorough                       they believe that the language clarified
                                          manual, and the sponsor is obligated to                 assessment. The other commenter stated                that vegetation maintenance does not
                                          perform maintenance according to the                    that levees disrupt natural processes                 require a section 404 permit. The Corps
                                          O&M manual, the project’s as-built                      important to floodplains and habitat.                 believes that this sentence is
                                          drawings and O&M manual should                          They also noted that the presence of                  unnecessary, since Section 404 permits
                                          constitute the maintenance baseline.                    levees on a stream does not transform                 are only required for discharges of
                                          Therefore, no maintenance baseline                      the stream into a flood control facility.             dredged or fill material, and, per the
                                          submittal should be required.                              While we agree that the construction               regulations at 33 CFR 323.2(d)(3)(ii),
                                             The intent of this NWP is to require                 of levees may require a thorough                      vegetation removal above the ground,
                                          the submittal of a maintenance baseline                 assessment of impacts on the watershed,               that does not disturb the root system or
                                          for all projects requesting authorization               the maintenance of existing levees is an              include redeposition of excavated soil
                                          by this NWP. A non-federal sponsor can                  activity that is appropriate for inclusion            material, is not a discharge of dredged
                                          submit the as-built drawings and O&M                    in this NWP since levees are often                    or fill material.
                                          manual from a federally-constructed or                  integral parts of flood control facilities.              One commenter stated that many
                                          funded flood control project. In any case               This NWP does not authorize the                       existing flood control facilities may not
                                          the maintenance baseline must be                        construction of levees. We believe that               have met the criterion (i.e., it was
                                          approved by the district engineer.                      the limitations and general conditions                previously permitted by the Corps, it
                                             Another commenter suggested that                     associated with the NWP will ensure                   did not require a permit at the time it
                                          the requirement to submit best                          that authorized projects will have no                 was constructed, or it was constructed
                                          management practices (BMPs) with the                    more than minimal adverse effects. The                by the Corps and transferred to a non-
                                          maintenance baseline documentation be                   requirement for an approved baseline                  federal sponsor), or the permittee cannot
                                          eliminated, as BMPs are addressed by                    and the ability to require mitigation                 provide documentation that the
                                          several general conditions. This                        provides a safeguard for valuable                     criterion was met. Another commenter
                                          commenter also requested that we                        habitat. The Corps agrees that levees do              requested that this NWP authorize the
                                          clarify the important exception that                    not make a stream a flood control                     maintenance of projects that were built
                                          applies to this NWP in regard to the                    facility. However, levees are a flood                 by others but accepted as part of a
                                          general condition 27 requirement that                   control facility and this NWP should                  federal flood control project or those
                                          the district engineer must approve any                  allow maintenance of the levees. In                   that are authorized under state or local
                                          compensatory mitigation proposal                        order for flood control activities to occur           flood control laws. Both commenters
                                          before the permittee commences work.                    in the stream, they would have to be                  requested that the Corps modify or
                                          The Corps disagrees that the                            included in the maintenance baseline,                 eliminate the criterion listed in the first
                                          requirement to submit BMPs is                           as described in the text of the NWP.                  sentence of this paragraph and authorize
                                          adequately addressed by general                            One commenter observed that the text               maintenance of any flood control
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                                          conditions. We believe that inclusion of                of this NWP uses the phrase                           facility after approving the maintenance
                                          the BMPs in the documentation is                        ‘‘significantly reduced capacity’’ when               baseline and reviewing the activity
                                          necessary so that the Corps can ensure                  discussing abandonment. They stated                   through the pre-construction
                                          that the impacts associated with the                    that Regulatory Guidance Letter 87–2                  notification process. In addition, one
                                          activity will be no more than minimal.                  discusses the ramification of using the               commenter stated that the Corps should


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                                          not consider a flood control facility to                establish a maintenance baseline that                 destroyed repeatedly. The Corps
                                          be abandoned because vegetation has                     lessens the frequency of maintenance.                 believes that activities authorized by
                                          become established in the facility. That                We do not believe it would be                         NWP 31 that comply with the
                                          commenter also said that the NWP                        appropriate to modify this NWP to                     maintenance baseline provision do not
                                          should compel agencies to perform                       authorize temporary stockpiling of                    result in more than minimal impacts,
                                          maintenance more frequently by                          sediments and other materials in waters               even without acreage limitations. The
                                          requiring mitigation for temporal losses                of the United States. Sediments and                   establishment of the maintenance
                                          in vegetation or habitat. Another                       other materials removed during the                    baseline, in effect, identifies the location
                                          commenter stated that agencies should                   maintenance of flood control facilities               and physical dimensions of waters of
                                          be encouraged to reduce the frequency                   must be deposited at non-jurisdictional               the United States that have been
                                          of maintenance where feasible by                        areas, unless the district engineer                   incorporated in the flood control
                                          approving maintenance baselines that                    authorizes temporary stockpiling                      facility. Discharges that result in losses
                                          allow for less frequent maintenance.                    through a separate Department of the                  of these waters (i.e., that exceed the
                                          One commenter said that this NWP                        Army authorization.                                   maintenance baseline) are not eligible
                                          should also authorize temporary                            The previous commenter also                        for authorization under NWP 31. In light
                                          stockpiling as authorized by NWP 12.                    remarked that the provisions for                      of this, we believe that the ‘‘one-time
                                             The criteria in the first sentence of                emergency situations still require that               mitigation requirement’’ imposed in
                                          this NWP cover all properly authorized                  the permittee submit a pre-construction               conjunction with the establishment of
                                          flood control facilities. Unless a flood                notification and wait for Corps approval              the maintenance baseline is sufficient
                                          control facility was constructed as a                   before conducting any emergency work                  for the purpose of this NWP. The intent
                                          result of a Corps Civil Works project, it               within the flood control facility. They               of the one-time mitigation is to replace
                                          would have required a Corps permit                      stated that this requirement could                    the aquatic functions that may be lost
                                          unless it was constructed in a manner                   compromise public health and safety, as               each time maintenance is performed.
                                          that did not require Corps authorization                it typically takes one or two days,                   Once the mitigation is in place, any
                                          or it was exempt from permit                            minimum, to obtain the necessary                      aquatic functions that develop between
                                          requirements. If it should have had                     approval to proceed. They requested                   maintenance activities, are over and
                                          Corps authorization but did not, we do                  deferral of the pre-construction                      above the level of function that existed
                                          not think it is appropriate to authorize                notification requirement until after the              before the initial maintenance occurred.
                                          maintenance under this NWP. The                         emergency maintenance activities have                 For areas or projects with specific
                                          Corps will not generally require                        been conducted. We believe that NWP                   issues, the division and district engineer
                                          documentation of compliance with                        31, as proposed, is a reasonable and                  may choose to add regional conditions
                                          these criteria, unless there is reason to               prudent way to minimize the burdens                   or special conditions to the NWP
                                          believe that these criteria are not met.                imposed on permittees, within the                     authorization.
                                             We believe that the current text                     constraints of applicable law and                        One commenter made reference to a
                                          accurately describes how a site should                  regulation. It is not appropriate to defer            particular project containing salmonids
                                          be determined to be abandoned. The                      the submittal of a pre-construction                   and stated that an NWP should not have
                                          presence of vegetation does not                         notification, due to the fact that the                been issued for that particular project.
                                          necessarily indicate that a flood control               Corps must determine if authorization                 The commenter objected to this NWP
                                          facility has been abandoned. However, a                 by this NWP is applicable. The Corps                  authorizing the continued maintenance
                                          site may be determined to be abandoned                  has developed specific procedures for                 of the project because the salmonid
                                          when vegetation has substantially                       dealing with emergency situations.                    habitat may have partially recovered
                                          diminished the capacity of the channel.                 Entities responsible for maintaining                  and would be repeatedly impacted.
                                          We do not believe it is necessary to                    flood control facilities should contact               While we agree that this can occur, we
                                          require permittees to conduct                           their local Corps office well in advance              do not agree that requiring mitigation
                                          maintenance more frequently, to                         of the rainy season, to familiarize                   over and over for what is, in effect, the
                                          prevent the establishment of vegetation                 themselves with the available                         same impact is appropriate. We believe
                                          within the flood control facility. The                  emergency processing procedures for                   that the limitations and general
                                          one-time mitigation requirement is                      that district.                                        conditions included within this NWP
                                          sufficient to offset the losses of aquatic                 One commenter suggested that                       will ensure that it will result in no more
                                          resource functions and services that will               activities authorized by this NWP                     than minimal effects. The requirement
                                          occur as a result of keeping the facility               instead be authorized by NWP 3. We                    for an approved baseline and the ability
                                          within the maintenance baseline.                        believe that the specific requirements of             to require mitigation provides a way to
                                          Maintenance-related discharges that do                  this NWP are necessary to ensure that                 safeguard valuable habitat.
                                          not exceed the established maintenance                  impacts to the aquatic environment are                   This NWP is reissued as proposed.
                                          baseline will not result in losses of                   minimal. Incorporating these                             NWP 32. Completed Enforcement
                                          aquatic resources beyond those                          requirements into NWP 3 would be                      Actions. We proposed to eliminate the
                                          addressed at the time the maintenance                   confusing and make implementation of                  phrase ‘‘For either (i), (ii), or (iii)
                                          baseline is established. The frequency of               that NWP more difficult.                              above,’’ from the last paragraph of this
                                          maintenance will depend on the                             Another commenter asserted that this               NWP. In addition, we proposed to
                                          characteristics of the flood control                    NWP has the potential for more than                   remove the phrase ‘‘or fails to complete
                                          facility and the surrounding area. Those                minimal impacts, based on the fact that               the work by the specified completion
                                          flood control facilities that were                      there are no limits on acreage or volume              date.’’
                                          constructed in more dynamic                             of discharges. The commenter also                        Two commenters suggested that the
                                          environments generally require more                     commented that one-time mitigation                    five-acre non-tidal water or one-acre
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                                          frequent maintenance. Because of the                    does not adequately ensure that aquatic               tidal water limits be eliminated. They
                                          various environmental factors affecting                 functions will be restored, and that                  believe that if the NWP applied to
                                          the need for maintenance and the                        limiting mitigation to one-time will                  enforcement actions with greater
                                          physical parameters that apply to an                    result in more than minimal adverse                   impacts, then the mitigation could be
                                          existing facility, it would be difficult to             impacts if mature wildlife habitat is                 completed earlier which would reduce


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                                          temporal losses. One commenter said                        One commenter remarked that the                    the NWP 33 anyway. The commenter
                                          that the NWP should have a limit of two                 activities authorized by this NWP do not              recommends removing or clarifying this
                                          acres for wetland impacts, since the                    correlate with the programmatic general               statement.
                                          permit process, including the                           permits in the commenter’s state.                        This statement is intended to reiterate
                                          opportunity for public comment, has                        The Corps acknowledges this                        that if any structures are left in place,
                                          been avoided. One commenter stated                      comment, however, we believe it is                    separate authorization is required,
                                          that individual permits should be                       simply a statement and does not warrant               however we have broadened it to cover
                                          required for activities undertaken as a                 any changes to the proposed NWP.                      all situations where structures left in
                                          result of an enforcement action. They                      This NWP is reissued as proposed.                  place require separate Section 10
                                          believe that greater oversight is                          NWP 33. Temporary Construction,                    authorization.
                                          appropriate for a party that broke the                  Access, and Dewatering. We proposed                      Another commenter generally
                                          law.                                                    to divide the first sentence of this NWP              supported NWP 33 as proposed, but
                                             We believe that if the unauthorized                  into two sentences, to clarify that the               recommended changing the word
                                          activity impacts more than five acres of                NWP can be used to authorize                          ‘‘conditions’’ to ‘‘contours’’ in the
                                          non-tidal waters or one acre of tidal                   temporary activities associated with                  sentence stating ‘‘Following completion
                                          waters that it may be more appropriate                  both construction projects that do not
                                                                                                                                                        of construction, temporary fill must be
                                          to either require an individual permit                  otherwise require permits from the
                                                                                                                                                        entirely removed to upland areas,
                                          review or to pursue a judicial settlement               Corps or the U.S. Coast Guard, and
                                                                                                                                                        dredged material must be returned to its
                                          or judgment. In cases where judicial                    those that do require and have obtained
                                                                                                                                                        original location, and the affected areas
                                          settlements are pursued, there is usually               such permits. We also proposed to move
                                                                                                                                                        must be restored to the pre-project
                                          a comprehensive evaluation of the                       the requirement for a restoration plan
                                                                                                                                                        conditions.’’ Several commenters
                                          environmental damage associated with                    from the ‘‘pre-construction notification’’
                                                                                                                                                        indicated that requiring the area to be
                                          the unauthorized work and substantial                   general condition (general condition 13
                                                                                                                                                        restored to pre-project conditions may
                                          mitigation and penalties. In addition,                  of the 2002 NWPs) to the ‘‘Notification’’
                                                                                                                                                        not be beneficial when the pre-project
                                          we recognize that the limits for this                   paragraph of this NWP, because it only
                                                                                                  applies to this NWP. We inadvertently                 conditions were degraded. One
                                          NWP exceed the limits for the majority                                                                        commenter suggested we require the
                                          of the NWPs. We believe however, that                   used the term ‘‘mitigation plan’’ in the
                                                                                                  ‘‘Notification’’ paragraph in the                     affected areas be restored to the pre-
                                          the requirement that non-judicial                                                                             project conditions or to a condition with
                                          settlements provide for environmental                   proposed NWP, and have changed it to
                                                                                                  ‘‘restoration plan’’ in the final permit.             greater than pre-project habitat
                                          benefits equal to or greater than the
                                                                                                  The pre-construction notification must                functions and services. Another
                                          environmental harm caused by the
                                                                                                  include a restoration plan showing how                commenter suggested saying that the
                                          unauthorized activity ensures that the
                                                                                                  all temporary fills and structures will be            area should be returned to appropriate
                                          net impacts caused by the unauthorized
                                                                                                  removed and the area will be restored to              pre-existing stable elevations and slope
                                          work are no more than minimal. The
                                                                                                  pre-project conditions. The restoration               and restored with vegetation species
                                          thresholds limit the maximum size of
                                                                                                  plan should also describe reasonable                  matching the adjacent undisturbed
                                          the impact area and, wherever
                                                                                                  measures for avoidance and                            areas, but consistent with the purposes
                                          appropriate and practicable, restoration
                                                                                                  minimization of adverse effects to                    of the associated project for which the
                                          of this area will be required to undo the
                                                                                                  aquatic resources. Please note that this              temporary construction is necessary.
                                          impacts. In any case, full compensation
                                          for the impacts in some form is                         restoration plan is different from the                   We agree that returning a degraded
                                          required.                                               mitigation requirements in general                    area to better than pre-existing
                                             One commenter requested we delete                    condition 20 for permanent losses of                  conditions is beneficial and we support
                                          the sentence stating that the NWP does                  waters of the United States. We                       this concept. We will not require the
                                          not apply to any activities occurring                   proposed to remove the sentence that                  area to be restored to create better
                                          after the date of the court decision,                   states that the district engineer will add            habitat functions and services, but we
                                          decree or agreement that are not for the                special conditions to ensure minimal                  are not precluding this work from
                                          purpose of mitigation, restoration or                   adverse effects, since the addition of                occurring. Removal of temporary fills is
                                          environmental benefit. The commenter                    special conditions where necessary to                 also addressed in general condition 13
                                          believes that this provision limits the                 ensure minimal adverse effects is a                   and the language in NWP 33 has been
                                          ability of the Corps to enter into a                    condition of all NWPs.                                slightly modified to match this general
                                          settlement agreement. Another                              One commenter suggested that NWP                   condition. Any fill left in place will
                                          commenter requested that language be                    33 should also be used to authorize                   require separate authorization.
                                          added to the NWP to expressly prohibit                  temporary stockpiles and temporary fills                 One commenter questioned whether
                                          its use for any future impacts related to               that are related to construction                      the restoration plan for temporary and
                                          the existing project that is under the                  activities.                                           permanent impacts could be included in
                                          enforcement action.                                        The Corps agrees that this work could              a single plan, with any proposed
                                             The Corps believes that the NWP as                   potentially be authorized under NWP 33                mitigation, and whether the mitigation
                                          proposed is appropriate. Proposed                       as long as all other conditions are met               plan must be submitted concurrently
                                          additional project impacts (e.g., impacts               and the work is the minimum necessary                 with the pre-construction notification.
                                          necessary to complete the project that                  to complete the project. However, the                 Another commenter opposed the
                                          was initiated without a permit) must be                 districts have discretion in determining              provision requiring that a restoration
                                          evaluated under other NWPs, regional                    if the work is the minimum necessary.                 plan be included in the pre-construction
                                          general permits, or individual permit                      One commenter expressed concern                    notification that shows how the area
                                          review processes. This permit is                        about the last statement in this NWP,                 will be restored to pre-project
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                                          intended only to authorize past                         which requires a Section 10 permit for                conditions. The commenter was
                                          discharges along with the required                      structures left in place. The commenter               concerned that a restoration plan is not
                                          compensatory activities, not to                         indicated this statement is contradictory             always developed up front because a
                                          substitute for applicable permit                        since any structures left in place would              contractor is often not selected until
                                          requirements for future activities.                     be permanent and would not qualify for                after a permit has been issued.


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                                             The pre-construction notification                    construction notification and temporary               These commenters also requested that
                                          must contain a restoration plan showing                 impacts to waters of the United States.               the Corps not reissue this permit as it
                                          how all temporary fills and structures                  In particular, we are not requiring                   violates section 404(e) of the CWA and
                                          will be removed and the areas restored                  separate authorization under NWP 33                   the section 404(b)(1) Guidelines. In
                                          to pre-project conditions. The                          for temporary impacts associated with                 addition, they remarked that it is
                                          restoration plan must, at a minimum,                    activities authorized under these three               unclear how the permittee would
                                          include a general description of how                    NWPs. Therefore, we are retaining the                 determine whether a net loss occurs.
                                          restoration will be accomplished, with                  pre-construction notification                         They were concerned that permittees
                                          as much detail as is practicable when                   requirements from the September 26,                   would claim that converting a natural
                                          the pre-construction notification is                    2006, proposal for NWP 33. We have                    wetland to a cranberry bog does not
                                          submitted. We do not believe that                       modified the text of this NWP to require              result in a net loss of wetlands and as
                                          selection of a contractor is necessary for              restoration of affected areas to pre-                 a result these losses would not be
                                          the development of an appropriate                       construction elevations, with                         counted. In addition, one commenter
                                          restoration plan.                                       revegetation, as appropriate, to be                   remarked that the Corps should not rely
                                             Several commenters requested that we                 consistent with the changes to general                on compensatory mitigation to offset the
                                          clarify or define some of the terms in                  condition 13, Removal of Temporary                    potential adverse impacts associated
                                          NWP 33, such as cofferdam, access fill,                 Fills.                                                with conversion of wetlands to
                                          and temporary structure. One of the                        This NWP is reissued with the                      cranberry bogs.
                                          commenters also asked if the Corps                      modification discussed above.                            We believe that the activities
                                          considers temporary construction pads                      NWP 34. Cranberry Production                       authorized by this NWP will not have
                                          to be a form of access that requires                    Activities. We proposed to rearrange the              more than minimal impacts both
                                          authorization. They also asked if                       text of the NWP and to eliminate the                  individually and cumulatively. This
                                          cofferdam includes structures that only                 phrase ‘‘provided the activity meets all              NWP authorizes activities associated
                                          partially isolate a portion of the                      of the following criteria’’. In addition,             with the expansion, enhancement, or
                                          streambed but still allow water to pass.                we proposed to eliminate the                          modification of existing cranberry
                                             The Corps believes that cofferdam,                   requirement for delineations of special               operations. This NWP does not
                                          access fill, and temporary structure are                aquatic sites from the text of the NWP,               authorize new operations. Regarding the
                                          widely used and accepted terms. The                     since this is a requirement of general                determination of net loss, this NWP
                                          Corps is hesitant to place strict                       condition 27.                                         requires pre-construction notification.
                                          definitions on these terms. The Corps                      One commenter requested                            The district engineer will determine if
                                          does consider temporary construction                    clarification of the last part of the last            the proposed project would result in a
                                          pads to be a form of access that can be                 sentence which reads ‘‘. . .and the NWP               net loss of wetland acreage, not the
                                          authorized under NWP 33 and we do                       would authorize that existing operation,              permittee. In making this determination,
                                          consider a structure that partially blocks              provided the 10-acre limit is not                     the Corps would consider conversion of
                                          a portion of the streambed to be a                      exceeded.’’ Another commenter                         natural wetlands to cranberry bogs a
                                          cofferdam that could be authorized by                   recommended reducing the acreage                      loss of waters. We believe the pre-
                                          NWP 33.                                                 limit to 1⁄2 acre. This commenter also                construction notification requirement
                                             One commenter suggested that                         said that pre-construction notifications              gives district engineers the ability to
                                          notification should not be required for                 must clearly indicate areas to be                     assess the impacts to aquatic resources
                                          temporary impacts that last less than 24                impacted by the proposed activity.                    and, if the acreage limit is exceeded or
                                          hours, when used with Best                                 We believe that the text of this NWP               if otherwise warranted, exercise
                                          Management Practices. Another                           is clear. This NWP only authorizes                    discretionary authority and require an
                                          commenter requested we include a limit                  activities associated with existing                   individual permit. The individual
                                          on the duration of impacts, such as 48                  cranberry production operations, such                 permit process includes case-specific
                                          hours. Another commenter requested                      as expansion, reconfiguration or                      reviews to ensure compliance with the
                                          that the Corps consider an exemption to                 leveling. The NWP provides                            Section 404(b)(1) Guidelines. In
                                          the pre-construction notification                       authorization for these types of                      addition, division and district engineers
                                          requirement if the temporary fill is a                  activities, provided the total impacts to             will condition such activities where
                                          mat instead of dirt, or a stabilized                    waters of the United States during the                necessary to ensure that these activities
                                          material, and it is in place for only a                 5-year term of the NWP do not exceed                  will have no more than minimal adverse
                                          short time, such as 48 hours. This                      10 acres. It does not authorize the                   effects on the aquatic environment,
                                          commenter also suggested that the                       construction of new cranberry                         individually and cumulatively. The
                                          Corps allow an exemption to the pre-                    production operations. Since this NWP                 Corps believes that this NWP is fully in
                                          construction notification requirement                   authorizes only existing cranberry                    compliance with section 404(e) of the
                                          for minor amounts of temporary                          production activities, the 10-acre limit              Clean Water Act.
                                          impacts. A commenter questioned                         is appropriate because these areas                       One commenter stated that the Corps’
                                          whether a water-inflated cofferdam                      remain as wetlands, even though they                  limited cumulative effects data suggests
                                          would be considered de minimus and be                   are managed to improve cranberry                      a reduction in average impacts
                                          exempt from submitting a pre-                           production. General condition 27                      associated with this NWP. They added
                                          construction notification. Several                      requires prospective permittees to                    that this reduction appears to be due to
                                          commenters recommended that a PCN                       submit delineations of waters of the                  cranberry production activities being
                                          should not be required for temporary                    United States with their pre-                         authorized under state or regional
                                          construction access roads and other                     construction notifications, so that the               general permits.
                                          construction activities covered under                   impacts of the proposed activity can be                  We believe that the use of state
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                                          NWP 33, unless the discharge causes the                 assessed.                                             programmatic and regional general
                                          temporary loss of greater than 1⁄10 acre                   Some commenters asserted that the                  permits to authorize cranberry
                                          of waters of the United States.                         activities authorized by this NWP will                operations are appropriate. All general
                                             We have modified NWPs 3, 12, and 14                  result in more than minimal adverse                   permits must have no more than
                                          to address concerns regarding pre-                      impacts, individually and cumulatively.               minimal adverse effect. Regional general


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                                          11130                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          permits developed in consideration of                      NWP 36. Boat Ramps. We proposed to                 the aquatic environment are adequately
                                          local and regional issues have been                     modify this NWP to allow district                     offset. We also believe that the ability of
                                          determined to have minimal impacts                      engineers to waiver the 50 cubic yard                 division engineers to impose regional
                                          both individually and cumulatively. As                  limit for discharges of dredged or fill               conditions for certain activities will
                                          with the NWPs, regional general permits                 material into waters of the United States             ensure minimal adverse effects on the
                                          also enable the district engineer to                    to construct a boat ramp. We also                     aquatic environment, individually and
                                          exercise discretionary authority to                     proposed to allow district engineers to               cumulatively.
                                          require individual permit review, where                 waiver the 20 foot width limit for boat                  Two commenters indicated that the
                                          appropriate.                                            ramps. These waivers can be issued                    case-by-case waiver of the 50 cubic yard
                                             The NWP is reissued as proposed.                     only if, after reviewing a pre-                       and 20-foot width discharge limits
                                             NWP 35. Maintenance Dredging of                      construction notification, the district               should also require the Corps to
                                          Existing Basins. We proposed to change                  engineer determines that adverse effects              coordinate with appropriate federal and
                                          the phrase ‘‘disposed of’’ to ‘‘deposited               on the aquatic environment and other                  state natural resource agencies.
                                          at’’ in the text of this NWP.                           factors of the public interest will be                   We disagree it is necessary to
                                             One commenter suggested the NWP                      minimal.                                              coordinate with federal and state natural
                                          be modified to allow disposal of                           Many commenters supported the                      resource agencies prior to the district
                                          dredged material (e.g., sand and gravel)                discretion vested in district engineers to            engineer determining whether to grant a
                                          in the littoral system.                                 waive the limitations imposed by this                 waiver for those activities that exceed
                                             We believe the placement of dredged                  NWP, however one commenter objected                   the 50 cubic yard fill limit and/or 20-
                                          material at upland sites with the                       to the flexibility provided to the district           foot width limit. District engineers have
                                          implementation of proper siltation                      engineers and suggested activities that               the aquatic resources expertise to
                                          controls helps to ensure minimal                        exceed 50 cubic yards or 20 feet in                   determine whether activities will result
                                          impacts on the aquatic environment,                     width be evaluated under an individual                in more than minimal adverse effect on
                                          individually and cumulatively. We                       permit process. Another commenter                     the aquatic environment.
                                          agree that beneficial use of dredged                    requested we include guidelines for                      One commenter noted that activities
                                          material, including placement of                        when and to what degree the district                  authorized under this NWP do not
                                          suitable material on beaches or in the                  engineer would apply waivers to the 50                require Department of the Army
                                          littoral zone, can provide environmental                cubic yard fill limit and/or 20-foot                  authorization in Section 404-only
                                          benefits. However, such activities can                  width limit to avoid inconsistencies.                 waters unless there is more than
                                          result in unintended adverse                               We believe deference must be given to              incidental fallback.
                                          environmental effects, and therefore                    district engineers’ expertise and                        Discharges in waters of the United
                                          require detailed and comprehensive                      knowledge of the local aquatic                        States that are not otherwise exempt
                                          analysis of sediment and littoral                       environment, as well as his/her                       from regulation require Corps
                                          processes. We believe that an individual                assessment of information submitted in                authorization. We acknowledge that the
                                          permit is the appropriate mechanism for                 pre-construction notifications, to make               Corps does not regulate excavation
                                          authorizing this use of dredged material                case-specific determinations on the                   under section 404 in instances when
                                          and that it should not be permitted                     effects to the aquatic environment. The               there is only incidental fallback.
                                          under this NWP.                                         proposed pre-construction notification                   This NWP is reissued as proposed.
                                             Another commenter requested that we                  requirement for discharges that exceed                   NWP 37. Emergency Watershed
                                          require pre-construction notification to                50 cubic yards or 20 feet in width will               Protection and Rehabilitation. We
                                          help determine whether dredging                         enable the district engineer to evaluate              proposed to rearrange the text of this
                                          activities authorized under this NWP                    the direct, indirect and cumulative                   NWP to match the other permits. In the
                                          may indirectly adversely impact                         effects of a proposed activity to                     final permit, we have added two
                                          adjacent beaches and near shore habitat.                determine whether a waiver is                         additional types of activity (reclamation
                                             Generally, dredging of existing basins               appropriate or an individual permit is                of abandoned mine lands pursuant to
                                          does not result in substantial adverse                  required. Because of the inherent                     Title IV of SMCRA and the Emergency
                                          impacts to adjacent beaches and/or near                 variability across the nation, we                     Conservation Program administered by
                                          shore habitat when proper siltation                     disagree that it is necessary or                      the Farm Service Agency) that may be
                                          controls are used, as required by this                  appropriate to establish guidelines for               authorized.
                                          NWP. We disagree that pre-construction                  the application of the waiver. We expect                 One commenter supported the
                                          notification is necessary for these                     district engineers to formulate their                 reissuance of this NWP without change,
                                          dredging activities since division                      case-specific determinations on the                   since they regularly partner with the
                                          engineers have the ability to impose                    appropriateness of the waiver based on                Natural Resources Conservation Service
                                          regional conditions, including the                      the unique characteristics of the local               on emergency projects. Another
                                          requirement for pre-construction                        aquatic environment and in                            commenter expressed concerns that
                                          notifications for certain activities, to                consideration of the specific                         NWP 37 does not contain specific
                                          ensure minimal adverse effects on the                   circumstances of the proposed activity.               requirements for conducting repair work
                                          aquatic environment, individually and                      One commenter noted that boat ramps                and it only includes generic references
                                          cumulatively.                                           are hardened surfaces that diminish                   to environmentally defensible
                                             One commenter remarked that we                       near shore or bank habitat and asserted               approaches. The commenter agreed that
                                          should provide clarification on the                     that pre-construction notification                    allowing the work to commence
                                          applicability of this NWP to existing                   should be required along with                         immediately (with follow-up permitting
                                          access channels and mooring facilities.                 mitigation.                                           as necessary) may be desirable due to
                                             This NWP authorizes excavation and                      We believe that the discretion vested              the urgency of some disaster responses;
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                                          removal of accumulated sediment for                     in district engineers to issue special                however, they indicated that the process
                                          maintenance of existing basins provided                 conditions on a case-specific basis,                  may be prone to uncertainty about
                                          that the activity complies with its terms               including requirements for appropriate                requirements and may cause more than
                                          and conditions.                                         and practicable mitigation (see general               minimal harm to the aquatic resources.
                                             This NWP is reissued as proposed.                    condition 20), will ensure that losses to             The commenter indicated that activities


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11131

                                          are funded by the Natural Resources                     NWP 49), to authorize abandoned                       authorization, unless the activity
                                          Conservation Service but not always                     mined land reclamation activities that                involves discharges of dredged or fill
                                          implemented by the agency, so people                    also involve coal extraction activities.              material into waters of the United States
                                          with limited experience may be                          However, for those abandoned mine                     and/or structures or work in navigable
                                          completing the work. The commenter                      land reclamation activities that do not               waters of the United States. Temporary
                                          suggested that work should only be                      involve coal extraction, we believe it is             access to remove the material may be
                                          allowed to proceed prior to verification                more appropriate to authorize these                   authorized by NWP 33. Restoration of
                                          where a damage response team                            activities under NWP 37, since they                   the affected area may be authorized
                                          comprised of federal and state agencies                 help protect and rehabilitate                         under NWP 27.
                                          have developed the site specific plans                  watersheds, and have revised the text of                 One commenter requested
                                          for damage repair.                                      the NWP accordingly. In cases where it                clarification regarding the applicability
                                             We believe that in some cases the                    is necessary to conduct an emergency                  of NWP 38 for emergency response to an
                                          urgency of the activities authorized by                 abandoned mine reclamation activity                   oil release in waters of the United States
                                          this NWP requires an expedited process.                 immediately, the project proponent may                from electrical equipment that is not
                                          All activities require pre-construction                 proceed with the work (see paragraph                  covered by a Spill Prevention, Control,
                                          notification, and as a general matter, the              (d)(3) of general condition 27) while the             and Countermeasure (SPCC). The
                                          prospective permittee should wait until                 district engineer reviews the pre-                    releases are governed by EPA’s
                                          the district engineer issues an NWP                     construction notification. For clarity, we            polychlorinated biphenyl spill response
                                          verification before proceeding with the                 have also added a new paragraph to this               regulations (40 CFR part 761). Because
                                          watershed protection and rehabilitation                 NWP that is consistent with paragraph                 the activities are not included in a SPCC
                                          activity. A watershed protection and                    (d)(3) of general condition 27. We have               Plan, they are not authorized by NWP
                                          rehabilitation activity may proceed                     also added Emergency Conservation                     20. The work that is required must be
                                          immediately only in those cases of true                 Program activities funded by the Farm                 initiated within 24 or 48 hours of
                                          emergencies (i.e., where there is an                    Service Agency, which provides cost-                  discovery of the release, so the
                                          unacceptable hazard to life or a                        share assistance to eligible participants             commenter requested that either NWP
                                          significant loss of property or economic                to rehabilitate farmland damaged by                   20 be modified or the pre-construction
                                          hardship will occur). Where practicable,                floods, hurricanes, or other natural                  notification requirement under NWP 38
                                          permittees are encouraged to consult                    disasters. The implementing regulations               be removed in situations where the
                                          informally with the Corps before                        for the Emergency Conservation                        response time is critical.
                                          proceeding with emergency activities. In                Program are found at 7 CFR part 701.                     Instead of modifying this NWP, we
                                          cases where emergency watershed                            The NWP is reissued, with the                      have modified NWP 20 to include
                                          protection and rehabilitation activities                modifications discussed above.                        coverage of response to spills not
                                          were conducted prior to receiving an                       NWP 38. Cleanup of Hazardous and                   covered by a SPCC Plan, but otherwise
                                          NWP verification, the district engineer,                Toxic Waste. We proposed to modify                    required to be initiated in a short time
                                          after reviewing the pre-construction                    this NWP by moving the requirement to                 frame by another government agency,
                                          notification, may modify, suspend, or                   submit a delineation of waters of the                 such as EPA’s polychlorinated biphenyl
                                          revoke the NWP authorization through                    United States to paragraph (b)(4) of the              spill response regulations at 40 CFR part
                                          the procedures at 33 CFR 330.5. All of                  ‘‘pre-construction notification’’ general             761.
                                          the projects authorized by this permit                  condition (GC 27). We also proposed to                   This NWP is reissued as proposed.
                                          are conducted under the sponsorship of                  move the last sentence of this NWP to                    NWP 39. Commercial and
                                          another Federal resource management                     a ‘‘Note’’ at the end of the NWP.                     Institutional Developments. We
                                          agency. Those agencies, not the Corps,                     One commenter requested this NWP                   proposed to modify this NWP by
                                          have the responsibility to determine                    be revoked, because the cleanup of                    moving the provisions authorizing
                                          whether the project complies with their                 hazardous waste has the potential to                  residential developments to NWP 29,
                                          program authority. The Corps must                       cause adverse effects during and after                requiring pre-construction notification
                                          determine the applicability of the NWP                  the activities. The commenter indicated               for all activities authorized by this
                                          to the specific project, but for the most               that remedial activities in navigable                 NWP, and applying the 300 linear foot
                                          part, the Corps only reviews the                        waters and wetlands need site-specific                limit to ephemeral streams.
                                          proposed work to determine compliance                   review, evaluation and permitting to                     Three commenters objected to moving
                                          with the requirements of the NWP and                    ensure proper design, appropriate                     residential developments from NWP 39
                                          the general conditions. We believe that                 restoration, and long term stability.                 to NWP 29 because these developments
                                          any specific concerns should be                            This NWP requires pre-construction                 are inconsistent with the original intent
                                          addressed through regional conditions                   notification to the Corps. We believe our             of NWP 29. Six commenters supported
                                          or through consultation with the                        review under this NWP is sufficient,                  removing residential developments
                                          sponsoring agency.                                      since the activities authorized must be               stating that the impacts associated with
                                             A couple of commenters                               performed, ordered, or sponsored by a                 residential developments are not the
                                          recommended adding Title IV of the                      government agency with established                    same as commercial and institutional
                                          Surface Mining Control and                              legal or regulatory authority.                        developments. Three commenters
                                          Reclamation Act, which governs the                         Another commenter suggested the                    desired the ability to use multiple NWPs
                                          abandoned mine land reclamation                         expansion of this NWP to allow removal                with NWP 39 for mixed-use
                                          program, to proposed NWP E, Coal                        of waste material, such as trash, debris,             developments, such as housing and
                                          Remining Activities. One commenter                      detritus, or rubble, in waters of the                 commercial. One commenter did not
                                          suggested adding to NWP 37 work                         United States. The commenter suggested                support removing residential
                                          funded by the Farm Service Agency                       that the NWP should be modified to                    development from this NWP because
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                                          under its Emergency Conservation                        authorize the immediate removal of the                mixed-use developments would lead to
                                          Program, which rehabilitates farmland                   waste and the notification to the Corps               more than minimal impacts if multiple
                                          damaged by natural disasters.                           after the material has been removed.                  NWPs were used.
                                             As discussed below, we have revised                     In general, the removal of waste                      As discussed in the preamble to the
                                          proposed NWP E (now designated as                       material should not require Corps                     September 26, 2006, Federal Register


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                                          notice, the proposed changes effectively                aquatic environment. Five objected to                 required in a pre-construction
                                          eliminates the previous NWP 29. We do                   removing language concerning                          notification (see general condition 27) to
                                          not believe that NWP 39 will result in                  avoidance and minimization to the                     reduce the paperwork burden on
                                          more than minimal individual and                        maximum extent practicable. Two                       prospective permittees. Requiring
                                          cumulative adverse effects, on the                      commenters suggested maintaining                      notification for all activities authorized
                                          aquatic environment if it is used with                  language requiring a conceptual                       under NWP 39 will help ensure adverse
                                          other NWPs in accordance with general                   mitigation plan. Several commenters                   minimal effects.
                                          condition 24, Use of Multiple                           recommended retaining the language                       Thirteen commenters wrote
                                          Nationwide Permits.                                     concerning single and complete                        concerning impacts to streams and the
                                             Two commenters recommended                           projects. Two commenters asserted that                use of waivers. See the discussion
                                          allowing the NWP to be used in non-                     maintaining language addressing                       regarding this topic, above.
                                          tidal wetlands adjacent to tidal waters,                minimal change to flow and water                         One commenter stated that projects
                                          while another agreed with the proposed                  quality was necessary. Two commenters                 authorized by this NWP are not water-
                                          language to exclude its use from these                  objected to removal of language                       dependent and should not be permitted.
                                          wetlands. One commenter declared that                   concerning minimizing on-site and off-                   We agree that most commercial and
                                          the NWP should not be used in                           site impacts, such as avoiding flooding               institutional developments are not water
                                          wetlands accessible to anadromous fish                  of adjacent lands. Another commenter                  dependent activities. This does not
                                          or in difficult-to-replace aquatic                      objected to removing ‘‘many’’ of the                  mean that they cannot be permitted,
                                          environments. One commenter wanted                      restrictions in the NWPs, including this              only that they undergo an alternatives
                                          the acreage limit increased to 5 acres                  one. One commenter suggested that                     analysis (see the EPA’s 404(b)(1)
                                          and another recommended it be                           problems will occur without the                       Guidelines at 40 CFR part 230).
                                          decreased to 1⁄4 acre so that it reflects               language about ‘‘single and complete                  Although analysis of off-site alternatives
                                          the limits in the previous version of                   projects.’’                                           is not required for general permits, each
                                          NWP 29.                                                    We disagree with these comments.                   proposed project is evaluated to
                                             We believe that restricting the types of             Requirements for avoidance and                        determine whether avoidance and
                                          wetlands the NWP applies to is an                       minimization, management of water                     minimization has been accomplished on
                                          appropriate method of assuring that                     flows, and water quality are provided in              the project site to the maximum extent
                                          minimal adverse impacts are not                         the NWP general conditions. Removal of                practicable (see general condition 20,
                                          exceeded. Division engineers may                        language from the permit text itself does             Mitigation). In addition, the activity is
                                          regionally condition or revoke this NWP                 not affect the applicability of                       not authorized under an NWP if the
                                          in certain areas or for certain activities              requirements contained in Corps                       adverse impacts to waters of the United
                                          if they believe the NWP would result in                 regulations and in the NWP general                    States are more than minimal.
                                          more than minimal impacts. Increasing                   conditions. We have repeatedly                           This NWP is reissued as proposed.
                                          the acreage limit to 5 acres would likely               emphasized in this preamble that                         NWP 40. Agricultural Activities. We
                                          result in activities that will have more                permittees must review the general                    proposed to modify this NWP to require
                                          than minimal individual and                             conditions before using any NWP to                    pre-construction notification for all
                                          cumulative adverse effects on the                       ensure that they are meeting all                      activities, authorize the construction of
                                          aquatic environment. Reducing the                       requirements for its use. District                    farm ponds in waters other than
                                          acreage limit to 1⁄4 acre would cause                   engineers will review pre-construction                perennial streams, and remove certain
                                          many projects that do have minimal                      notifications to ensure that all                      restrictions on who could use the NWP.
                                          adverse impacts to be evaluated under                   practicable on-site avoidance and                        One commenter wanted to retain the
                                          the individual permit process.                          minimization has been accomplished. In                paragraph numbering of the 2002 NWP.
                                             Many commenters supported                            response to a pre-construction                        Another commenter said that this NWP
                                          retaining the language requiring                        notification, the district engineer may               should be limited to USDA program
                                          sufficient vegetated buffers to be                      require compensatory mitigation to                    participants.
                                          maintained adjacent to all open water                   ensure that the authorized activity                      The Corps believes the revised
                                          bodies, such as streams. One commenter                  results in minimal adverse                            numbering system is appropriate and
                                          requested an unspecified minimum                        environmental effects (see 33 CFR                     easy to understand. This NWP should
                                          vegetated buffer width while two                        330.1(e)(3)).                                         not be limited to USDA program
                                          commenters suggested a 200 foot                            Several commenters objected to the                 participants, since there are agricultural
                                          setback from streams containing                         mandatory pre-construction notification               activities being conducted by non-
                                          anadromous fish. One commenter                          requirement and suggested a pre-                      participants that result in minimal
                                          supported removing of the buffer                        construction notification threshold of                adverse effects on the aquatic
                                          language and relying on paragraph (d)                   1⁄10 acre or greater than 300 feet of                 environment which are appropriately
                                          (now designated as paragraph (f)) of                    stream loss. Some of these commenters                 authorized by NWP.
                                          general condition 20.                                   reasoned that eliminating the 1⁄10 acre                  One commenter opposed reissuance
                                             In general, the Corps agrees that                    pre-construction notification threshold               of NWP 40 because of unacceptable
                                          buffers (i.e., riparian areas) are                      would be a disincentive to avoid the                  impacts to wetlands. Two commenters
                                          necessary to protect streams and other                  loss of waters of the United States. Two              did not support eliminating the 1⁄2 acre
                                          open waters. District engineers will                    commenters supported the proposed                     limit per farm tract on impacts to waters
                                          make determinations regarding the need                  pre-construction notification                         of the United States, and one
                                          for and amount of required riparian                     requirement.                                          commenter recommended reducing the
                                          areas in the context of general condition                  We disagree that the pre-construction              acreage limit to 1⁄10 acre. One
                                          20, Mitigation.                                         notification threshold should be 1⁄10                 commenter expressed concern that
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                                             One commenter stated that including                  acre. We acknowledge that this will                   removing farm tracts as the basis for the
                                          the expansion of commercial or                          result in an increase in the number of                acreage limit would result in use of this
                                          institutional buildings will lead to                    pre-construction notifications district               NWP to authorize discharges of dredged
                                          piecemealing projects and result in                     engineers receive, however, we are                    or fill material for non-agricultural
                                          more than minimal impacts on the                        proposing to simplify the information                 activities. One commenter stated that


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                                          roadside stands should not be                           States or they qualify for the section                aquatic resources are more than
                                          considered farm buildings for                           404(f) exemption.                                     minimal, individually or cumulatively,
                                          authorization under this NWP. One                          We are limiting the construction of                he or she will impose special conditions
                                          commenter recommended retaining the                     farm ponds to certain types of waters                 to reduce the impacts to the minimal
                                          1⁄10 acre threshold for pre-construction                where the adverse effects to the aquatic              level or assert discretionary authority
                                          notification. One commenter stated that                 environment are likely to be minimal,                 and require an individual permit. In
                                          pre-construction notification should not                individually and cumulatively. This                   addition, division engineers may add
                                          be required for projects conducted                      NWP does not authorize the                            regional conditions to this NWP to
                                          under USDA programs.                                    construction of farm ponds in perennial               restrict or prohibit its use in certain
                                             We believe the requirement for pre-                  streams. Under this NWP, farm ponds                   types of waters, if discharges into those
                                          construction notifications for all                      may be constructed in non-tidal                       waters for agricultural activities would
                                          activities and the case-by-case review by               wetlands, intermittent streams, and                   result in more than minimal adverse
                                          district engineers will ensure that                     ephemeral streams. Pre-construction                   effects on the aquatic environment.
                                          activities authorized by this NWP result                notification is required for all activities           General condition 20, Mitigation,
                                          in no more than minimal individual and                  authorized by this NWP, so that district              requires district engineers to determine
                                          cumulative adverse effects to the aquatic               engineers will have the opportunity to                appropriate and practicable mitigation
                                          environment and other public interest                   review each proposed activity to                      necessary to ensure that impacts are no
                                          review factors. The district engineer will              determine whether the adverse effects                 more than minimal. The Corps believes
                                          add case specific conditions and require                on the aquatic environment will be                    the pre-construction notification
                                          mitigation when needed to ensure                        minimal. If the construction of a farm                requirement for all activities and the
                                          impacts do not exceed the minimal                       pond does not involve discharges of                   case-by-case review by district engineers
                                          level, and will assert discretionary                    dredged or fill material into waters of               will ensure that activities authorized
                                          authority to require an individual                      the United States, or if it qualifies for a           under this NWP will result in no more
                                          permit when impacts are more than                       Section 404(f) exemption, the project                 than minimal individual and
                                          minimal. Due to differences in program                  proponent is not required to submit a                 cumulative adverse effects to the aquatic
                                          requirements between USDA programs                      pre-construction notification. This NWP               environment. The Corps notes that the
                                          and Section 404 of the Clean Water Act,                 authorizes the construction of farm                   acreage and linear foot limits in the
                                          it is not possible to ensure that activities            ponds that involve discharges of                      NWPs apply only to waters that are
                                          conducted under USDA programs will                      dredged or fill material into waters of               jurisdictional under the Clean Water
                                          necessarily comply with Section 404                     the United States and do not qualify for              Act.
                                          requirements and have minimal adverse                   the Section 404(f)(1)(C) exemption,                      One commenter stated that the Corps
                                          impact to waters of the United States.                  because of the recapture provision at                 now proposes to ignore impacts to
                                          Therefore, we are retaining the pre-                    Section 404(f)(2). We have added a                    waters of the United States associated
                                          construction notification requirement                   sentence to the ‘‘Note’’ at the end of this           with agricultural dredge and fill
                                          for USDA program participants and                       NWP to clarify that this NWP is used to               activities that are deemed exempt under
                                          projects. We have removed the reference                 authorize the construction of farm                    Section 404(f) of the Clean Water Act.
                                          to ‘‘farm tracts’’ because we have found                ponds that are not exempt under                          This NWP authorizes certain
                                          that it caused confusion in the past. The               Section 404(f).                                       agriculture activities that are not eligible
                                          limit applies to each single and                           One commenter was concerned about                  for the exemptions under Section 404(f)
                                          complete project (see definitions                       negative impacts to salmonids from                    of the Clean Water Act. Those
                                          section). District engineers will                       agriculture activities. Of main concern               agricultural activities that qualify for the
                                          determine during the pre-construction                   was placement of farm buildings in                    Section 404(f) exemptions do not
                                          notification process whether the acreage                wetlands and streams, discharges from                 require a Section 404 permit. This has
                                          limit is satisfied. Eliminating the use of              drainage tiles into farm ditches that                 always been the case; it is not a change
                                          farm tracts would not expand the use of                 were built in salmonid streams, and                   from current practice.
                                          this NWP to non-agricultural activities.                levee maintenance that degrades                          One commenter stated that the
                                          The text of this NWP clearly states that                salmonid habitat and riparian areas.                  possible waiver for the relocation of
                                          it authorizes only agricultural activities.                Potential adverse impacts from these               greater than 300 linear feet of existing
                                             One commenter objected to                            activities will be addressed during the               serviceable drainage ditches constructed
                                          authorizing farm ponds in wetlands and                  pre-construction notification review.                 in intermittent and ephemeral streams
                                          two objected to authorizing farm ponds                  Water quality issues are also addressed               would result in more than minimal
                                          in non-tidal waters excluding perennial                 during Section 401 water quality                      adverse impacts. Another commenter
                                          streams. One commenter supported the                    certification or by a Clean Water Act                 said that the provision authorizing the
                                          use of NWP 40 for construction of farm                  Section 402 permit.                                   relocation of existing serviceable
                                          ponds only in streams without aquatic                      Two commenters stated that the                     drainage ditches constructed in non-
                                          life use designations. Another                          proposed permit will destroy wetland                  tidal streams should be conditioned to
                                          commenter said that the proposed                        acres. One commenter stated that the                  ensure that the activity does not result
                                          modification was unnecessary, since                     loss of prairie potholes and western                  in a reduction in base flow to the
                                          many farm ponds are constructed                         glaciated potholes will be staggering.                stream.
                                          outside of waters of the United States or               Another commenter stated that                            In response to a pre-construction
                                          they are exempt from section 404 permit                 discharges into playas, prairie potholes,             notification for the proposed relocation
                                          requirements because of the exemption                   and vernal pools should not be allowed                of greater than 300 linear feet of existing
                                          at Section 404(f)(1)(C) of the Clean                    under NWP 40.                                         serviceable drainage ditches constructed
                                          Water Act. This commenter expressed                        The 1⁄2-acre limit for this NWP applies            in intermittent or ephemeral streams,
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                                          concern that the proposed changes to                    to the loss of waters associated with                 the activity is not authorized unless the
                                          NWP 40 would require landowners to                      activities authorized by this NWP.                    district engineer issues a written waiver
                                          submit pre-construction notifications for               During the pre-construction notification              after determining that the activity will
                                          all farm ponds, even if they are not                    review process, if the district engineer              result in minimal adverse effects on the
                                          constructed in waters of the United                     determines that adverse effects to                    aquatic environment. The relocation of


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                                          drainage ditches must also comply with                  division engineers may also regionally                erosion, further improving water
                                          general condition 9, Management of                      condition this NWP to restrict or                     quality.
                                          Water Flows, to maintain the capacity of                prohibit its use to construct farm ponds                 We proposed to remove the
                                          those waters to the maximum extent                      in certain categories of non-tidal waters             prohibition against permanent
                                          practicable.                                            of the United States. We believe that                 sidecasting of excavated material into
                                             Several commenters stated that some                  construction of aquaculture ponds is a                waters of the United States, where the
                                          language in the NWP was confusing or                    distinct activity that should not be                  excavated material results from the
                                          needed clarifying. This included the                    authorized under this NWP because                     ditch reshaping activity. In cases where
                                          phrase ‘‘ditches constructed in waters of               there may be unique issues associated                 there are jurisdictional wetlands or
                                          the United States’’, whether the permit                 with it (e.g., invasive species concerns,             other waters next to the ditch to be
                                          applies to farm tracts or the entire farm,              changes in water quality). Ponds                      reshaped, this prohibition is likely to
                                          and the concept of ‘‘necessary for                      constructed for purposes other than                   cause many landowners to maintain the
                                          agriculture production’’.                               conventional agriculture may be                       ditch at its originally designed
                                             We have removed the definition of                    authorized under other general permits                configuration to qualify for the
                                          ’’farm tract’’ and the conditions limiting              or individual permits.                                exemption, since the 404(f)(1)(C)
                                          the use of NWP 40 on a particular site,                    This NWP is reissued as proposed.                  exemption allows discharges of dredged
                                          since district engineers will receive pre-                 NWP 41. Reshaping Existing Drainage                or fill material into waters of the United
                                          construction notifications for all                      Ditches. We proposed to modify this                   States resulting from ditch maintenance
                                          activities authorized by this NWP.                      NWP to clarify that it authorizes only                activities.
                                          District engineers will review pre-                     the reshaping of drainage ditches                        Some commenters supported the
                                          construction notifications for those                    constructed in waters of the United                   modifications to this NWP because they
                                          NWPs to ensure that the proposed work                   States where the purpose of reshaping
                                                                                                                                                        encourage landowners to maintain
                                          results in minimal individual and                                                                             drainage ditches in a manner that
                                                                                                  the ditch is to improve water quality. As
                                          cumulative adverse environmental                                                                              benefits the aquatic environment.
                                                                                                  a result of this modification, we also
                                          effects. We believe that the other terms                                                                      Several commenters also agreed with
                                                                                                  proposed to remove the sentence that
                                          are self-explanatory. Determining                                                                             the proposal to remove the prohibition
                                                                                                  states why compensatory mitigation is
                                          whether an activity is necessary for                                                                          against permanent sidecasting of
                                                                                                  not required for the activities authorized
                                          agriculture production involves some                                                                          excavated materials into waters of the
                                                                                                  by this NWP.
                                          discretion, which the district engineer                                                                       United States. Several other commenters
                                          will apply when evaluating pre-                            The purpose of this NWP is to                      did not support allowing permanent
                                          construction notifications for proposed                 encourage landowners who need to                      sidecasting of material excavated from
                                          projects.                                               maintain drainage ditches constructed                 reshaped ditches. These commenters
                                             One commenter said that this NWP                     in waters of the United States to do so               suggested that the sidecasting would
                                          should not authorize the construction of                in a manner that benefits the aquatic                 have adverse impacts that exceed the
                                          livestock watering ponds unless the                     environment. The maintenance of a                     water quality improvements. One
                                          applicant submits documentation                         drainage ditch is exempt under Section                commenter suggested we provide
                                          showing that he or she has obtained                     404(f)(1)(C) of the Clean Water Act, and              conditions on the sidecast material,
                                          government assistance for the                           does not require a section 404 permit.                such as requiring the fill to be no higher
                                          construction of the pond, and that no                   This exemption does not apply to the                  than 18 inches, so that the hydric soils
                                          feasible alternatives are available that                reshaping of existing drainage ditches,               will retain their hydric characteristics.
                                          would avoid discharges into waters of                   so landowners have a disincentive to                  They also suggested requiring random
                                          the United States. This commenter                       reshape their ditches, even though such               distribution of the material and that the
                                          supported the proposed prohibition                      reshaping can be beneficial to the                    sidecast should not interfere with
                                          against constructing farm ponds in                      aquatic environment. This NWP                         surface water flows. Another commenter
                                          perennial streams, but also                             authorizes those reshaping activities                 indicated that permanent sidecasting
                                          recommended that the NWP prohibit                       that benefit the aquatic environment.                 that isolates wetlands on-site, rendering
                                          the construction of farm ponds in                          This NWP was first issued on March                 them non-jurisdictional, should not be
                                          oxbows or lakes. Another commenter                      9, 2000, (65 FR 12818) to authorize, to               allowed.
                                          stated that NWP 40 should authorize the                 the extent that a section 404 permit is                  The exemption at 404(f)(1)(C) allows
                                          construction of aquaculture ponds.                      required, the grading of the banks of a               sidecasting, but prohibits reshaping
                                             We do not agree that it is necessary                 currently serviceable ditch to gentler                drainage ditches. This NWP provides an
                                          to require prospective permittees to                    (shallower) slopes than its current or                incentive to improve water quality
                                          obtain government assistance as a                       original configuration. Reshaping a                   through reshaping the drainage ditches
                                          condition of authorization under this                   drainage ditch so that it has shallower               while still allowing sidecasting of the
                                          NWP. General condition 20, Mitigation,                  side slopes can help improve water                    material. The Corps believes that
                                          requires permittees to avoid and                        quality by decreasing the velocity of                 allowing the sidecasting under this
                                          minimize adverse effects to waters of                   water flowing through the ditch and by                NWP will encourage landowners to
                                          the United States to the maximum                        spreading out water flow over a greater               reshape existing drainage ditches in
                                          extent practicable on the project site.                 area of soil surface. It should also                  favor of water quality improvements
                                          District engineers will also review pre-                provide more area for plants to become                instead of conducting traditional
                                          construction notifications to ensure                    established and grow within the ditch.                maintenance activities. The Corps
                                          compliance with the terms and                           These changes are likely to help                      recognizes the need to ensure that the
                                          conditions of this NWP, including                       improve water quality by increasing                   sidecasting has minor impacts on the
                                          general condition 20. If a farm pond is                 water contact with vegetation and soil                aquatic environment and does not
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                                          proposed to be constructed in an oxbow                  microbes, which facilitates the removal               isolate wetlands. Regional conditions
                                          or a lake, the district engineer will                   of nutrients and other chemical                       may be added to ensure that the
                                          review the pre-construction notification                compounds through biogeochemical                      individual and cumulative impacts are
                                          to determine if the activity will result in             processes. Slower water flow rates                    minimal. We note that the presence of
                                          minimal adverse effects. In addition,                   through the ditch should also decrease                a man-made berm between wetlands


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                                          and adjacent waters does not necessarily                environment. Other forms of                           regrading the drainage ditch with
                                          make the wetlands non-jurisdictional.                   Department of the Army authorization                  gentler slopes, which can reduce
                                             Some commenters suggested that                       may be more appropriate to authorize                  erosion, increase growth of vegetation,
                                          many drainage ditches are within what                   this type of work.                                    and increase uptake of nutrients and
                                          was a historical stream that has been                      Another commenter indicated that the               other substances by vegetation. We have
                                          straightened and many of these drainage                 amount of change in reshaping is not                  added this language to the NWP. More
                                          ditches are used by anadromous                          specified.                                            stable banks may result from these
                                          salmonids as transport to upstream                         We do not believe it is necessary to               activities, but the primary objective of
                                          spawning grounds and for juvenile                       place a limit on the cubic yards of                   these projects is to improve water
                                          rearing. One commenter suggested this                   change that can occur with this permit.               quality. We recognize that the
                                          NWP should not be used in waterbodies                   We believe if the purpose is to reshape               environmental benefits of these
                                          bearing salmon where a state or federal                 the ditch and improve water quality, an               activities usually need to be determined
                                          watershed analysis or limiting factors                  upper limit does not need to be                       subjectively.
                                          analysis has determined that off-channel                specified.                                               A commenter was also concerned that
                                          rearing habitat is limiting or potentially                 One commenter indicated that the                   the NWP does not require an applicant
                                          limiting to salmonid production. The                    term ‘‘* * * ditches constructed in                   to prove the proposed ditch reshaping
                                          commenters indicated that an                            waters of the United States’’ is                      activity will not increase the area
                                          individual permit should be required for                confusing and suggested changing it to                drained by the ditch. The commenter is
                                          work in ditches that are accessible to                  ‘‘serviceable drainage ditches which                  concerned this NWP has a high
                                          anadromous salmonids. The commenter                     were constructed in regulated wetlands                potential for abuse and will attract
                                          suggested if this NWP is utilized in such               or by channelizing waters of the United               landowners looking for authorization to
                                          waterbodies, a regional condition                       States.’’ Another commenter stated that               make their ditches larger to drain
                                          should require a delineation of pools                   the Corps has too narrowly defined                    wetlands more thoroughly and they
                                          and riffles and that reshaping be                       what constitutes a drainage ditch. The                suggest that the Corps will need to
                                          conducted in a manner that does not                     commenter indicated that a large                      dedicate more resources to track and
                                          reduce volume and surface area of pools                 number of streams in the United States                monitor the use of this permit. The
                                          or other suitable low velocity habitat.                 have had some channelization and some                 commenter also indicated there must be
                                             The Corps agrees that these are                      people refer to these water bodies as                 a limit on the extent of impacts
                                          important concerns but they only relate                 drainage ditches. The commenter is                    authorized under this permit and that
                                          to certain areas. Division and district                 concerned that some natural                           extensive reshaping of drainage ditches
                                          engineers will impose regional                          waterbodies will be reshaped, which                   should be subject to individual permit
                                          conditions or case-specific conditions,                 would actually reduce water quality.                  review.
                                          so that adverse effects to salmon species                  We believe the current phrasing is                    The Corps believes that the pre-
                                          that utilize these drainage ditches are                 simple and concise, since jurisdictional              construction notification requirement
                                          minimal, individually and                               wetlands are waters of the United                     for this NWP will allow us to review
                                          cumulatively.                                           States. This NWP is intended for                      larger-scale proposals and ensure that
                                             One commenter suggested this NWP                     currently serviceable drainage ditches                additional wetlands are not drained by
                                          should allow for the restoration of                     and the applicability of the NWP can be               the work. We have modified the text of
                                          ditches that lose their original shape,                 determined on a case-by-case basis by                 this NWP, to prevent drainage of
                                          become vegetated, and obtain                            the district engineers. This NWP does                 additional wetlands. We have replaced
                                          characteristics of wetlands due to long                 not authorize the channelization of                   the phrase ‘‘original design capacity’’
                                          ditch maintenance cycles, which are                     existing streams and it does not                      with ‘‘original as-built capacity’’ to
                                          often greater than 20 years.                            authorize the relocation of those                     reflect the extent of drainage that
                                             The Corps believes that this NWP may                 streams. In addition, this NWP does not               occurred when the drainage ditches
                                          potentially be used in such areas in                    authorize the reshaping of natural                    were originally constructed. We have
                                          cases where the purpose of the work is                  waterbodies. If a ditch has become                    also changed the word ‘‘designed’’ to
                                          to improve water quality. However, to                   incised, this NWP may potentially be                  ‘‘constructed’’ in that sentence to ensure
                                          be eligible to use this NWP, the drainage               used to reshape the ditch, thereby                    that the reshaping activity does not
                                          ditches must be currently serviceable                   making it more stable.                                drain additional waters. We believe
                                          and not so degraded that the area                          Another commenter is concerned                     these changes will help prevent
                                          appears to have more the characteristics                about the lack of required                            increases in the area drained by these
                                          of a wetland than those of a drainage                   documentation or demonstration of how                 ditches, especially in those cases where
                                          ditch.                                                  the proposed reshaping will meet this                 the ditch did not achieve its design
                                             One commenter suggested this NWP                     basic condition of NWP eligibility. The               capacity when it was originally
                                          should authorize reshaping of natural                   commenter also questioned why the                     constructed.
                                          drainage features. The commenter                        Corps does not define the term                           A commenter recommended
                                          indicated that reshaping unvegetated                    ‘‘improving water quality’’ and does not              modifying the requirement that the
                                          streambeds, channels, and watercourses                  explain how to evaluate a project that                capacity of the ditch must be the same
                                          with vertical banks subject to                          improves some aspects of water quality,               as originally designed. The commenter
                                          continuous erosion would provide                        but harms others. One commenter                       is concerned that the only way for the
                                          flatter and vegetated side slopes, which                suggested a wording change to say, ‘‘for              capacity to remain the same is if the
                                          would improve water quality.                            the purpose of stabilizing eroded banks’’             side slopes are increased is to narrow
                                             We do not agree that this NWP should                 instead of ‘‘for the purpose of water                 the bottom of the existing ditch. The
                                          be modified to authorize alterations to                 quality.’’ The commenter indicated that               commenter expressed concern about
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                                          the geomorphology of natural streams                    saying the work is for the purpose of                 narrowing the bottom of the ditch and
                                          and other waters of the United States.                  improving water quality is vague and                  still having a stable system. The
                                          Such changes to natural waterbodies                     subject to misinterpretation.                         commenter suggested requiring the
                                          may result in more than minimal                            The work authorized by this permit is              bottom width and depth of the ditch to
                                          adverse effects to the aquatic                          designed to improve water quality by                  be the same as originally designed.


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                                             We do not agree that this language                   stream processes. The commenter                       contained meanders or other natural
                                          should be changed, except to refer to the               encouraged the Corps to remove the                    stream characteristics.
                                          as-built capacity or the original                       channelization restriction from NWP 41.                  Other commenters suggested putting
                                          construction of the ditch, for the reasons                 The intent of this NWP is to authorize             the language from the 2002 NWP 41
                                          discussed above. The Corps believes                     the reshaping of ditches to provide more              about compensatory mitigation back in
                                          that changing the language as                           stable conditions, which will improve                 the NWP.
                                          recommended in the previous paragraph                   water quality. The Corps does not                        The Corps agrees and the following
                                          may unduly restrict the design criteria,                believe this permit should allow                      language has been placed in the final
                                          because there may be some cases where                   channelization of streams.                            version of NWP 41: ‘‘Compensatory
                                          the bottom width and depth would                           Several commenters questioned why                  mitigation is not required because the
                                          change, but the capacity would remain                   this NWP excludes non-tidal wetlands                  work is designed to improve water
                                          the same; therefore, we are keeping the                 adjacent to tidal waters. The                         quality.’’
                                          current language. The important point is                commenters asked why it matters                          This NWP is reissued with the
                                          that this NWP may not be used to                        whether currently serviceable drainage                modifications discussed above.
                                          increase the capacity of the ditch.                     ditches were originally constructed in                   NWP 42. Recreational Facilities. We
                                             A commenter requested that some                      non-tidal wetland adjacent to tidal                   proposed to modify this NWP by
                                          provisions be made to allow for an                      waters or in upland settings.                         removing the language that limits its use
                                          increase in capacity to accommodate                        We believe that excluding ditch                    to those recreational facilities that are
                                          increased drainage in the watershed.                    reshaping activities in non-tidal                     integrated into the existing landscape
                                          Due to increased runoff, ditches may                    wetlands adjacent to tidal waters is                  and do not substantially change pre-
                                          have become incised and restoring                       necessary to ensure that the adverse                  construction grades or deviate from
                                          stable slopes may require increased                     effects on the aquatic environment will               natural landscape contours. We also
                                          capacity. The commenter suggested not                   be minimal, individually and                          proposed to modify this NWP to require
                                          restricting the permit to original design               cumulatively. Wetlands adjacent to tidal              pre-construction notifications for all
                                          capacity, since this does not allow for                 waters tend to have a high level of                   activities, and apply the 300 linear foot
                                          laying back the side slopes without                     ecological and hydrologic connectivity                limit for losses of stream bed to
                                          decreasing maximum depth to avoid                       with tidal waters. Ditch reshaping                    ephemeral streams. In addition, we
                                          increasing cross sectional area. Another                activities in these areas may have more               proposed to modify this NWP, to
                                          commenter indicated that there may be                   than minimal adverse effects and can be               authorize the construction of ski areas,
                                          constricted conditions that do not allow                better addressed by other general                     playing fields, and basketball and tennis
                                          for shallow side slopes and wanted to                   permits or individual permits.                        courts.
                                          know if there would be flexibility in the                  One commenter stated that this NWP                    One commenter suggested that the
                                          use of NWP 41.                                          should have a 500 linear foot limit and               Corps change the word ‘‘loss’’ to ‘‘fill’’
                                             Modifying this NWP to allow                          a 250-foot pre-construction notification              or ‘‘impact’’ (including temporary and
                                          increased drainage capacity would be                    threshold and that mitigation must be                 permanent impacts). Another
                                          contrary to the intent of the NWP,                      required for all adverse impacts to the               commenter suggested rewording a
                                          which is to authorize changes in the                    aquatic environment authorized under                  sentence to address the Rapanos and
                                          ditch that help improve water quality. If               this permit. Another commenter said                   Carabell decisions.
                                          the site characteristics do not support                 that the activities authorized by this                   The Corps believes that the term
                                          reshaping the ditch in a manner that                    NWP would result in more than                         ‘‘loss’’ is the appropriate term. The term
                                          improves water quality, without                         minimal adverse effects.                              ‘‘loss of waters of the United States’’ is
                                          increasing drainage capacity, then this                    The Corps believes that the pre-                   defined in the ‘‘Definitions’’ section of
                                          NWP cannot be used. Modifications of                    construction notification threshold is                the NWPs. Issues related to the
                                          drainage ditches to accommodate                         sufficient. Since we will see all                     jurisdictional reach of the CWA are not
                                          changes in watershed hydrology or site                  proposals that are over 500 linear feet,              addressed in the NWPs or this
                                          limitations may be authorized by other                  we will have the opportunity to                       preamble. Department of the Army
                                          types of Department of the Army                         determine if the impacts are more than                Section 404 permits are required only
                                          permits.                                                minimal. The Corps does not believe                   for activities involving discharges of
                                             One commenter asked if the NWP 41                    this NWP will cause a permanent loss                  dredged or fill material into
                                          would authorize the reshaping of                        of waters, since the work involves                    jurisdictional waters.
                                          existing drainage ditches that were not                 reshaping existing drainage ditches to                   Three commenters stated that the
                                          constructed in waters of the United                     improve water quality, therefore,                     activities authorized by this NWP are
                                          States but now contain an ordinary high                 mitigation is not required.                           not similar in nature, and will not result
                                          water mark or wetlands.                                    Several commenters suggested that                  in minimal adverse effects to water
                                             This NWP may be used in currently                    removing some of the language from the                quality and the aquatic environment.
                                          serviceable drainage ditches to the                     NWP 41 issued in 2002 made the permit                    This NWP authorizes recreational
                                          extent that they are jurisdictional.                    less clear. One commenter suggested                   facilities. The activities authorized by
                                          Division or district engineers can make                 that the Corps add language stating                   this NWP are all recreational facilities,
                                          a determination on the applicability of                 indicating that this NWP is limited to                which is a category of activity that is
                                          this NWP on a case-by-case basis.                       reshaping activities that would restore               similar in nature. The pre-construction
                                             A commenter was concerned about                      more natural stream characteristics such              notification requirement gives district
                                          the prohibition against stream                          as increasing the area of riparian                    engineers the ability to assess the
                                          channelization activities. The                          vegetation through regrading or                       impacts to aquatic resources and, if
                                          commenter suggested that activities that                recreating stream meanders.                           warranted, exercise discretionary
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                                          modify the cross sectional configuration                   The Corps believes that including this             authority to add special conditions or
                                          of drainage ditches could easily be                     type of language would go beyond the                  require individual permits. Division and
                                          interpreted as manipulation of a                        intent of this NWP, which is to                       district engineers will condition such
                                          stream’s condition that causes more                     authorize the reshaping of existing                   activities where necessary to ensure that
                                          than minimal interruption of normal                     drainage ditches that may not have ever               these activities will have no more than


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                                          minimal adverse effects on the aquatic                     Two commenters requested that the                     We believe that prohibiting the use of
                                          environment, individually and                           NWP be clarified so that acreage limits               this NWP to authorize discharges of
                                          cumulatively.                                           are applied cumulatively for both the                 dredged or fill material into non-tidal
                                             Two commenters supported the                         original construction and expansion.                  wetlands adjacent to tidal waters to
                                          removal of the limits on the types of                   One commenter said that this NWP                      construct or expand recreational
                                          recreational activities that can be                     should not be used with NWPs 29 or 39,                facilities is necessary to ensure that the
                                          authorized by this NWP. A number of                     to authorize recreational facilities                  NWP authorizes only those activities
                                          commenters objected to allowing                         within residential, commercial, or                    that result in minimal individual and
                                          changes in preconstruction grades and                   institutional developments, and that the              cumulative adverse effects on the
                                          deviations in natural landscape                         1⁄2 acre should apply to such projects.               aquatic environment. Non-tidal
                                          contours. Two commenters requested                         The NWPs authorize single and                      wetlands adjacent to tidal waters
                                          we prohibit the use of this NWP for golf                complete projects, as defined in the                  warrant greater protection because of
                                          courses, ski areas, playing fields, and                 ‘‘Definitions’’ section of the NWPs. The              their interactions with those tidal waters
                                          basketball and tennis courts because                    1⁄2-acre limit associated with this NWP               and the functions and services they
                                          these types of facilities are likely to alter           applies to a single and complete project.             provide to coastal ecosystems.
                                          natural landscape contours. One                         In any case, if the district engineer                 Construction activities resulting in
                                          commenter stated that projects such as                  determines that the impacts of a                      discharges of dredged or fill material
                                          golf courses that require filling large                 proposed project are more than                        into those waters are more appropriately
                                          valleys to create flatter areas, will                   minimal, individually or cumulatively,                addressed through the individual permit
                                          change the hydrology of the area. One                   he or she will assert discretionary                   process or regional general permits.
                                          commenter requested that the Corps                      authority and require an individual                      One commenter stated that recreation
                                          revoke this NWP or exclude golf                         permit. It is not necessary to prohibit               facilities proposing impacts in streams
                                          courses, ski slopes, campgrounds and                    the use of NWP 42 with NWPs 29 or 39.                 accessible to anadromous salmonids
                                          associated structures from this NWP. A                  Even though NWPs 29 and 39 may be                     should not be authorized by this NWP.
                                          couple of commenters suggested                          used to authorize recreational facilities             Another commenter request that the
                                          prohibiting the use of this NWP for                     as attendant features of residential,                 Corps place regional conditions on this
                                          habitat conversion, and the construction                commercial, or institutional                          NWP such that it will not authorize the
                                          of buildings, stables and parking lots.                 developments, any use of NWP 42 with                  construction of trails or paths along the
                                          Another commenter supported                             NWPs 29 or 39 would be limited by                     top bank of a stream unless there is no
                                          excluding hotels, racetracks, stadiums,                 general condition 24, Use of Multiple                 loss of riparian vegetation or the
                                          and arenas from authorization by this                   Nationwide Permits. Under that general                riparian vegetation can grow back. That
                                          NWP. A few commenters stated the                        condition, the 1⁄2 acre limit would apply             commenter also suggested that this
                                          proposed NWP encourages development                     to such projects.                                     NWP should not be used with NWP 13,
                                          of recreational facilities in wetlands,                                                                       since activities authorized by these two
                                                                                                     Two commenters supported requiring
                                          which creates maintenance problems,
                                                                                                  pre-construction notification for all                 NWPs may adversely affect the addition
                                          and they requested the NWP not be
                                                                                                  activities authorized by this NWP. In                 of woody material in stream channels.
                                          modified.
                                             The Corps believes that recreational                 addition, they stated that the Corps                     Division engineers can impose
                                          facilities that result in minimal                       should require documentation in the                   regional conditions on this NWP to
                                          individual and cumulative adverse                       pre-construction notification that the                address cumulative impacts, including
                                          effects on the aquatic environment                      facilities will result in unaltered surface           impacts to salmon habitat. We do not
                                          should be authorized by this NWP,                       and groundwater regimes and will not                  agree that NWP 13 should be prohibited
                                          regardless of the changes that might                    alter flow into open waters or streams.               from being used with this NWP for a
                                          occur to pre-construction grades or                     Another commenter supported retaining                 single and complete project. Bank
                                          natural landscape contours in areas not                 the 1⁄10 acre threshold for pre-                      stabilization may be required to
                                          subject to section 404 jurisdiction. This               construction notifications and                        maintain the integrity and safety of a
                                          is consistent with activities authorized                eliminating it completely for projects                recreational facility and to protect
                                          by other NWPs, which do not restrict                    conducted under USDA programs. The                    aquatic resources.
                                          grading and landscape contouring in                     commenter believed requiring pre-                        One commenter stated that the pre-
                                          uplands. Because of the pre-                            construction notifications for all                    construction notification requirement is
                                          construction notification requirement                   activities makes more work for both the               not enough to ensure minimal impacts
                                          for this permit, the district engineer will             public and the Corps.                                 and that the Corps position that adverse
                                          have the opportunity to review                             The Corps believes that pre-                       impacts will be offset by compensatory
                                          proposed recreational facilities to                     construction notifications are necessary              mitigation is unfounded. This
                                          determine if they will result in more                   to ensure that proposed activities will               commenter also opposed eliminating
                                          than minimal individual and                             result in no more than minimal                        the requirement to submit avoidance
                                          cumulative adverse effects.                             individual and cumulative adverse                     and minimization statements and water
                                             Six commenters objected to the                       impacts. If the district engineer                     quality management measures.
                                          proposal to allow district engineers to                 determines that the construction or                      The pre-construction notification
                                          waive the 300 linear foot limit in                      expansion of recreational facilities will             requirement allows the Corps to
                                          ephemeral and intermittent streams.                     result in adverse effects on aquatic                  evaluate recreational facilities on a case-
                                          The district engineer will only waive                   resources, including water regimes and                by-case basis and determine if the
                                          the 300-linear foot limit in ephemeral                  flow, he or she can impose special                    project, as proposed, will result in more
                                          and intermittent streams if he or she                   conditions or require an individual                   than minimal impact. The Corps
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                                          determines that the individual and                      permit.                                               believes that compensatory mitigation is
                                          cumulative adverse effects on the                          One commenter opposed the                          an appropriate means of ensuring that
                                          aquatic environment are minimal. Any                    prohibition on use of this NWP in non-                adverse effects on the aquatic
                                          waivers must be issued in writing from                  tidal wetlands adjacent to tidal                      environment are minimal. The
                                          the district engineer.                                  wetlands, stating that it is arbitrary.               requirement to demonstrate avoidance


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                                          and minimization is part of general                        We do not agree it is necessary to                 protection, division engineers can
                                          condition 20, Mitigation.                               prohibit the construction of in-stream                impose regional conditions to further
                                             One commenter said that this NWP                     retention or detention basins and/or                  restrict or prohibit the use of NWP 43
                                          should be conditioned to require the                    hardened channels since division                      in high value perennial, intermittent
                                          establishment and maintenance of                        engineers can impose regional                         and ephemeral streams. Please note that
                                          buffers adjacent to all open waters,                    conditions to this NWP to exclude                     this NWP prohibits discharges of
                                          streams, and wetlands on the site, to                   certain types of activities in specific               dredged or fill material to construct new
                                          prevent water quality degradation due                   streams, watersheds, or other designated              stormwater management facilities in
                                          to erosion and sedimentation, protect                   aquatic resources to ensure impacts to                perennial streams.
                                          stream banks, provide wildlife habitat,                 the aquatic environment are minimal,                     Some commenters asserted that
                                          and to enhance watershed functions and                  individually and cumulatively. In                     activities authorized under this NWP
                                          values.                                                 addition, since construction and                      would result in adverse environmental
                                             The establishment and maintenance                    expansion activities require pre-                     impacts on spawning habitat or cause
                                          of riparian areas next to streams and                   construction notification, the district               more than minimal adverse impacts to
                                          other open waters is addressed through                  engineer can either require case-specific             the aquatic environment if the 300
                                          the requirements of general condition                   special conditions or exercise                        linear foot limit is waived, and, as a
                                          20, Mitigation. Please see the preamble                 discretionary authority to require an                 result should be evaluated under the
                                          discussion for general condition 20,                    individual permit if the proposed                     Corps individual permit process.
                                          where we address comments concerning                    activity, such as construction of in-                    In general, we believe the activities
                                          requirements and recommended widths                     stream basins and/or hardened                         authorized under NWP 43 would result
                                          for riparian areas.                                     channels, would result in more than                   in minimal adverse impacts to the
                                             This NWP is reissued as proposed.                    minimal adverse impact on the aquatic                 aquatic environment, including
                                                                                                  environment. All new construction and                 spawning habitat. Requiring individual
                                             NWP 43. Stormwater Management
                                                                                                  expansion of existing facilities requires             permits for all activities that would
                                          Facilities. We proposed to modify this
                                                                                                  a pre-construction notification.                      otherwise qualify for authorization
                                          NWP to require pre-construction
                                                                                                     Several commenters objected to the                 under NWP 43 based solely on the fact
                                          notification for the construction or
                                                                                                  application of a 300 linear foot                      that they involve the loss of greater than
                                          expansion of stormwater management
                                                                                                  threshold for intermittent and                        300 linear feet of ephemeral or
                                          facilities, but not for maintenance
                                                                                                  ephemeral streams, while other                        intermittent stream bed would place an
                                          activities. We also proposed to modify                                                                        unnecessary burden on the Corps and
                                                                                                  commenters indicated the activities
                                          the 300 linear foot limit for the loss of                                                                     the permittee, with negligible added
                                                                                                  authorized under this NWP should
                                          stream bed by applying that limit to                                                                          environmental benefits. District
                                                                                                  apply exclusively to ephemeral streams
                                          ephemeral streams. We proposed to                                                                             engineers will use their knowledge of
                                                                                                  and prohibit work in intermittent and
                                          allow district engineers to waive the 300                                                                     the local aquatic environments and
                                                                                                  perennial streams. One commenter
                                          linear foot limit if the stream bed is                                                                        case-specific circumstances to
                                                                                                  stated that no stormwater management
                                          intermittent or ephemeral and the filling                                                                     determine when proposed activities
                                                                                                  facilities should be constructed in
                                          and/or excavation of that stream bed                    waters of the United States.                          would result in more than minimal
                                          will result in minimal individual and                      We agree that intermittent and                     adverse effects on the aquatic
                                          cumulative adverse effects on the                       ephemeral streams often provide                       environment and consequently require
                                          aquatic environment. In addition, we                    important functions, services, and                    an individual permit. In addition,
                                          proposed to remove the requirement for                  values, although there are situations                 general conditions 2 and 3 provide for
                                          prospective permittees to submit                        where activities in these streams will                the protection of aquatic life movement
                                          maintenance plans and the permit text                   result only in minimal adverse effects                and spawning habitat, respectively,
                                          requiring the submission of                             on the aquatic environment. In many                   which collectively we believe will help
                                          compensatory mitigation proposals with                  cases, the only practicable alternatives              to ensure overall minimal impacts.
                                          pre-construction notifications.                         involve constructing stormwater                          One of the commenters requested we
                                             One commenter suggested we refer to                  management facilities in waters of the                establish criteria for the district
                                          the definition of ‘‘stormwater                          United States. The pre-construction                   engineer’s determination to waive the
                                          management facilities’’ rather than                     notification process allows district                  300 linear foot limit. One other
                                          furnish examples of the types of                        engineers to review proposed                          commenter expressed concerns that in
                                          stormwater management facilities in the                 construction and expansion activities on              the absence of such guidelines there
                                          description of the NWP.                                 a case-by-case basis to ensure that those             would be inconsistencies within the
                                             The text of the proposed NWP                         activities result in minimal individual               Corps as to how or to what degree the
                                          describes the type and nature of                        and cumulative adverse effects on the                 waiver is applied.
                                          activities that are authorized in various               aquatic environment.                                     We believe deference must be given to
                                          stormwater management facilities (e.g.,                    In order for the 300 linear foot                   the district engineers’ expertise and
                                          construction, maintenance, excavation,                  threshold for intermittent and                        knowledge of the local aquatic
                                          installation), rather than defining what                ephemeral streams to be waived, the                   environment, as well as their
                                          constitutes a stormwater management                     district engineer must make a written                 assessment of information submitted in
                                          facility. Therefore, we do not agree that               determination that the proposed work                  pre-construction notifications, to make
                                          the language within the text of the NWP                 will result in no more than minimal                   case-specific determinations on the
                                          is redundant or superfluous.                            adverse effects on the aquatic                        effects to the aquatic environment.
                                             Several commenters requested we add                  environment. If the district engineer                 Based on the inherent variability across
                                          restrictions to this NWP to exclude its                 does not provide written confirmation                 the nation, we disagree that it is
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                                          use in special aquatic sites and/or                     of the waiver, then the 300 linear foot               necessary or appropriate to establish
                                          prohibit construction of in-stream                      limit remains in place and the                        nationally applicable criteria for the
                                          retention or detention basins and                       prospective permittee must obtain                     application of the waiver. Aquatic
                                          construction of hardened channels (e.g.,                another type of authorization for the                 resource functions, services, and values
                                          concrete or riprap).                                    proposed activity. As an added level of               differ across the United States and,


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                               11139

                                          accordingly, there will be corresponding                waters of the United States require                   coal mining activities may be authorized
                                          differences in the criteria considered for              Department of the Army authorization.                 by NWP 49 (Coal Remining Activities)
                                          implementation of the waiver consistent                    One commenter opposed the                          or NWP 50 (Underground Coal Mining
                                          with regional and/or local variations.                  elimination of the 1⁄10 acre pre-                     Activities). This NWP continues to
                                          District engineers will make their case-                construction notification threshold.                  authorize aggregate mining and hard
                                          specific determinations on the                             We believe that pre-construction                   rock/mineral mining activities. We
                                          appropriateness of the waiver based on                  notification should be required for all               proposed to retain the 1⁄2 acre limit for
                                          the characteristics of the local aquatic                new construction and expansion of                     this NWP.
                                          environment and in consideration of the                 existing facilities in order for the Corps               A number of commenters supported
                                          specific circumstances of the proposed                  to ensure that the individual and                     reissuance of NWP 44, but opposed the
                                          activity.                                               cumulative adverse environmental                      1⁄2 acre limit, stating that it is arbitrary

                                             Some commenters suggested we                         impacts associated with the project are               and duplicative of other existing
                                          combine this NWP with NWP 3,                            minimal.                                              regulatory requirements, or is too
                                          Maintenance, since both include                            One commenter indicated this NWP                   stringent for the permit to be useable.
                                          maintenance activities.                                 should not apply to specific watersheds,              Several commenters expressed support
                                             We believe the specific requirements                 while another commenter insisted we                   for the 1⁄2-acre limit and recommended
                                          of NWP 43 are necessary to allow for                    not re-issue this NWP.                                adding a linear foot limit for stream
                                          specific types of maintenance activities                   We believe the stormwater                          impacts. One commenter recommended
                                          that may not be authorized by NWP 3.                    management facilities authorized under                a 1⁄4 acre limit for this NWP, to protect
                                          For example, NWP 43 authorizes                          NWP 43 often constitute vital                         anadromous fish. One commenter
                                          activities necessary to return the storm                development or improvement projects                   recommended a 2,000 linear foot limit
                                          water management facility to its original               that serve important public functions,                for impacts to streams.
                                          design capacities, which may include                    including protection of aquatic                          We believe that the terms and
                                          basins that are not considered structures               resources. While such activities may                  conditions of this NWP, including the
                                          or fills. In contrast, NWP 3 is limited to              need to be located in waters of the                   1⁄2-acre limit, will ensure that activities

                                          the repair, rehabilitation, or replacement              United States, we believe the underlying              authorized by this NWP result in no
                                          of structures or fills, or the removal of               provisions of the NWP program that                    more than minimal adverse effects to
                                          accumulated sediments in the vicinity                   require all authorized activities to have             the aquatic environment, individually
                                          of existing structures.                                 minimal impacts on the aquatic                        and cumulatively. Aggregate and hard
                                             A few commenters requested we                        environment, coupled with the ability of              rock/mineral mining activities that do
                                          provide clarifications to NWP 43,                       division engineers to impose regional                 not qualify for authorization under this
                                          including whether maintenance and                       conditions on specific activities, will               NWP can be authorized by individual
                                          mitigation plans for these facilities                   provide effective regulatory mechanisms               permits. We believe the 1⁄2 acre limit is
                                          would be required. Several commenters                   for protecting the aquatic environment                appropriate. We have modified the text
                                          requested we retain the requirement for                 without adding further restrictions on                of this NWP to clarify that the 1⁄2 acre
                                          submittal of maintenance plans for                      the use of NWP 43.                                    limit applies to all non-tidal waters of
                                          stormwater management facilities. Other                    One commenter indicated the                        the United States. This NWP only
                                          commenters indicated the pre-                           prohibition on use in non-tidal wetlands              authorizes discharges of dredged or fill
                                          construction notifications should                       adjacent to tidal waters is an unfair                 material into certain non-tidal waters of
                                          include maintenance plans, avoidance                    limitation to prospective permittees in               the United States. It does not authorize
                                          and minimization measures, and water                    coastal plains.                                       discharges into tidal waters, or non-tidal
                                          quality management measures.                               In consideration of the relatively high            wetlands adjacent to tidal waters. As a
                                             The removal of the requirement for                   functions, services, and values these                 pre-construction notification must be
                                          prospective permittees to submit                        wetlands contribute to the overall health             submitted for all activities, a specific
                                          maintenance plans and compensatory                      of the aquatic environment on a national              linear foot threshold for streams is not
                                          mitigation plans with pre-construction                  basis, we do not agree that the                       necessary, as the district engineer can
                                          notifications simplifies this NWP and                   prohibition on the use of NWP 43 in                   exercise discretionary authority or
                                          eliminates redundancy with general                      non-tidal wetlands adjacent to tidal                  include special conditions to ensure
                                          condition 20, Mitigation. Maintenance                   waters is unfair to those perspective                 that impacts to streams are no more than
                                          plans are not necessary if maintenance                  permittees located in coastal plains.                 minimal. District or division engineers
                                          does not increase the design capacity of                More importantly, this prohibition is                 can condition this NWP on a case-by-
                                          the facility. For new construction or                   necessary to ensure that this NWP                     case or regional basis to protect
                                          expansion of existing facilities,                       authorize only activities with minimal                anadromous fish.
                                          compensatory mitigation requirements                    adverse effects, individually and                        One commenter stated that ephemeral
                                          are addressed in general condition 20,                  cumulatively.                                         streams, isolated waters, and artificially
                                          Mitigation. Division engineers also have                   We have slightly revised the wording               created wetlands should not be
                                          the ability to impose regional conditions               of this NWP to clarify that activities                considered in the acreage limitations.
                                          to ensure specific activities authorized                which increase existing capacity may be                  The acreage limit for this NWP
                                          under this NWP result in minimal                        authorized as ‘‘expansion’’ of existing               applies to waters of the United States.
                                          adverse impacts on the aquatic                          facilities if pre-construction notification           Impacts to non-jurisdictional waters are
                                          environment.                                            is submitted.                                         not considered as losses of waters of the
                                             One commenter indicated                                 This NWP is reissued as modified                   United States, and are not counted
                                          maintenance of an existing stormwater                   above.                                                towards the acreage limit for this NWP.
                                          management facility should not require                     NWP 44. Mining Activities. We                         A couple of commenters stated that
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                                          Department of the Army authorization.                   proposed to simplify this NWP and                     the reclamation plan should not be
                                             We disagree with this comment.                       modify it to authorize all types of                   required as part of the pre-construction
                                          Unless an exempted activity, all work                   mining activities except for coal mining.             notification. Pre-construction
                                          and/or actions that result in the                       Surface coal mining activities may be                 notifications are frequently submitted to
                                          discharge of dredged or fill material into              authorized by NWP 21. Other types of                  the Corps before reclamation plans are


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                                          required and the Corps has no authority                 significant adverse effects to rivers and             paragraph (iii) and portions of
                                          over mining reclamation.                                streams, including those with important               paragraph (i) from NWP 3 to this new
                                             The Corps needs to review the                        fish and mussel species. One                          NWP, to authorize emergency repair
                                          reclamation plan to ensure that the                     commenter stated that this NWP does                   activities. This was intended to simplify
                                          authorized activities, including any                    not satisfy the ‘‘similar in nature’’                 NWP 3 and limit that NWP to routine
                                          required reclamation, do not result in                  requirement for general permits. One                  maintenance activities.
                                          more than minimal adverse                               commenter recommended that the                           Numerous commenters supported the
                                          environmental impact. In addition,                      Corps establish an activity-specific NWP              issuance of this new NWP.
                                          reclamation activities may affect the                   for the aggregates industry. One                         The majority of the comments
                                          need to require compensatory                            commenter recommended excluding                       received in response to the proposed
                                          mitigation.                                             peat mining and in-stream gravel                      NWP involved general concerns
                                             Several commenters opposed the                       mining, due to the environmental                      regarding the way in which this permit
                                          removal of the prohibition on using                     damage produced by these types of                     could affect time critical responses for
                                          NWP 44 in 100-year floodplains, while                   mining.                                               emergency situations. Many
                                          one commenter stated that certain                          This NWP authorizes mining                         commenters stated that authorization of
                                          mining activities will increase the flood               activities that have no more than                     the repair, rehabilitation, or replacement
                                          storage capacity of floodplains and                     minimal individual and cumulative                     of structures or fills destroyed or
                                          streams and thereby reduce flooding,                    adverse effects on the aquatic                        damaged by storms or other discrete
                                          which would benefit local communities.                  environment. The terms and conditions                 events should remain in NWP 3, since
                                             In accordance with general condition                 of this NWP, including the NWP general                NWP 3 did not require pre-construction
                                          10, permittees must comply with                         conditions, will ensure that these                    notification for those activities.
                                          applicable state or local floodplain                    mining activities will have no more than              Therefore, NWP 3 would allow
                                          management requirements that have                       minimal adverse environmental effects.                expeditious maintenance activities,
                                          been approved by the Federal                            All activities authorized by this NWP                 especially for infrastructure and other
                                          Emergency Management Agency. In                         require pre-construction notification to              important features.
                                          addition, the Corps will address impacts                the district engineer prior to                           We agree, and have returned the
                                          to 100-year floodplains through the                     commencement of mining activities.                    language to NWP 3 that authorizes the
                                          case-by-case review that occurs through                 The pre-construction notification                     repair, rehabilitation, or replacement of
                                          the pre-construction notification                       process allows district engineers to                  structures or fills destroyed or damaged
                                          process.                                                review mining activities on a case-by-                by storms or other discrete events. We
                                             Several commenters supported the                     case basis, to ensure that the proposed               wish to clarify that this NWP is not
                                          simplification of NWP 44 by eliminating                 work has no more than minimal adverse                 intended to serve as an emergency
                                          redundant terms and conditions. One                     effects on the aquatic environment. The               permit. An ‘‘emergency’’ is a situation
                                          commenter questioned whether the                        district engineer can add special                     which would result in an unacceptable
                                          permittee could mine the same area over                 conditions to the NWP authorization to                hazard to life, a significant loss of
                                          and over for aggregates as new deposits                 ensure that any adverse effects on the                property, or an immediate, unforeseen,
                                          accumulate each year. This commenter                    aquatic environment are no more than                  and significant economic hardship if
                                          also asked whether there is a limit on                  minimal, or exercise discretionary                    corrective action is not undertaken
                                          the number of times or locations that the               authority to require an individual                    within a time period that does not allow
                                          permit can be used by one mining                        permit for the work. This NWP complies                the Corps to process the application
                                          company, what kind of separation is                     with the ‘‘similar in nature’’                        under standard procedures. As many
                                          necessary between mining sites, and                     requirement of general permits because                commenters pointed out, pursuant to 33
                                          whether this NWP can be used by one                     it authorizes a specific category of                  CFR 325.2(e)(4), the Corps has already
                                          mining company on multiple streams.                     activities (i.e., mining activities, except           developed special permitting and
                                             This NWP can be used for any single                  for coal mining activities).                          permit application processing
                                          and complete mining activity that has                      One commenter recommended that                     procedures for emergency situations,
                                          independent utility. The definitions of                 the NWP be revoked in Montana                         which are applicable to all types of DA
                                          ‘‘single and complete project’’ and                     because these activities would have                   permits. Further, as several commenters
                                          ‘‘independent utility’’ are provided in                 more than minimal adverse                             indicated, in accordance with 33 CFR
                                          the ‘‘Definitions’’ section. Therefore, it              environmental effects. One commenter                  323.4(a)(2), certain emergency response
                                          is possible for an applicant to use this                also stated that the permit is not                    activities are exempted from the
                                          NWP each year or on multiple sites,                     adequately coordinated with state and                 permitting requirements of Section 404
                                          provided each activity is a single and                  federal resource agencies and eliminates              of the Clean Water Act. As a result of
                                          complete project that complies with the                 the public interest review.                           the changes discussed above, this NWP
                                          terms and conditions of the NWP,                           Division engineers may add regional                authorizes only the restoration of
                                          including the requirement that the                      conditions to this NWP to enhance                     upland areas damaged by storms, floods,
                                          individual and cumulative adverse                       protection of the aquatic environment                 or other discrete events. Those repairs
                                          environmental impacts are minimal. In                   and address local concerns. Division                  may or may not require emergency
                                          response to pre-construction                            engineers can also revoke this NWP in                 processing, though in most cases we
                                          notifications, district engineers will                  a specific geographic area if the use of              believe they will not. We believe that
                                          determine whether proposed mining                       that NWP would result in more than                    the confusion regarding the purpose of
                                          activities constitute separate single and               minimal adverse effects on the aquatic                this NWP was caused by the inclusion
                                          complete projects that qualify for NWP                  environment, especially in high value or              of the word ‘‘Emergency’’ in its name.
                                          authorization.                                          unique wetlands and other waters.                     In order to remove that confusion, we
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                                             A number of commenters were                             This NWP is reissued with the                      are renaming this NWP ‘‘Repair of
                                          opposed to the reissuance of NWP 44                     modification discussed above.                         Uplands Damaged by Discrete Events.’’
                                          because they believe the environmental                     NWP 45. Repair of Uplands Damaged                     Several commenters expressed
                                          impacts associated with the permit are                  by Discrete Events. This was proposed                 concerns over the lack of clear limits for
                                          more than minimal, and could result in                  as NWP A. We proposed to remove                       this NWP, and recommended


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11141

                                          establishing acreage or linear-foot limits              authorized under this NWP must                        of this NWP consistent with the pre-
                                          in order to prevent more than minimal                   comply with the NWP general                           construction notification requirements
                                          impacts to the aquatic environment. On                  conditions, including general condition               for this NWP. This requirement may be
                                          the other hand, several commenters                      16, Tribal Rights, and general condition              waived by the district engineer if the
                                          suggested establishing thresholds that                  2, Aquatic Life Movements.                            permittee can show that delays were
                                          would require pre-construction                             One commenter requested                            unavoidable.
                                          notification only for large-scale                       clarification regarding the effects of                   One commenter indicated that this
                                          activities. One commenter asked how                     changes in the ordinary high water mark               NWP should also authorize temporary
                                          ‘‘pre-event’’ bottom contours of                        after discrete storm or flood events on               impacts that are necessary to repair or
                                          waterbodies would be determined,                        the scope of activities authorized under              provide maintenance to damaged
                                          particularly on those sites with limited                this NWP.                                             structures.
                                          or no data, aerial photos, or other                        Discrete storm or flood events may                    This NWP does not authorize
                                          information.                                            result in erosion, which can change the               temporary fills, structures, or work
                                             This NWP only authorizes the                         ordinary high water mark (OHWM) in                    required to conduct the upland
                                          restoration of damaged uplands to the                   non-tidal waters or high tide line (HTL)              restoration activities. Those temporary
                                          extent that existed before the damage                   in tidal waters. For the purposes of this             activities may be authorized by NWP 33.
                                          occurred, along with any bank                           NWP, determinations regarding the                        Proposed NWP A is issued as NWP
                                          stabilization necessary to protect the                  location of the OHWM or HTL will be                   45, with the modifications discussed
                                          restored uplands. This NWP may also                     made by the district engineer upon                    above.
                                          authorize minor dredging where                          receipt of the pre-construction                          NWP 46. Discharges in Ditches. This
                                          necessary to restore material that has                  notification.                                         NWP was proposed as NWP B to
                                          washed from the uplands into a                             One commenter stated that this NWP                 authorize discharges of dredged or fill
                                          neighboring waterbody. Since this NWP                   is unnecessary since repair activities                material into certain types of ditches
                                          only authorizes activities to restore                   that do not exceed the original scope of              and canals. This NWP allows a
                                          damaged areas to previously existing                    the project should be covered by the                  landowner to return his or her land to
                                          conditions, we do not believe that it will              original authorization. One commenter                 its prior condition, but only in those
                                          result in adverse effects that did not                  stated that the Corps should not allow                cases where the ditches or canals meet
                                          previously exist. We believe that the                   rebuilding of structures located in                   all four criteria specified in the NWP.
                                          pre-construction notification                           floodplains which are likely to be                    To qualify for this NWP, those ditches
                                          requirements established for this NWP                   damaged again by subsequent storm                     and canals must: (1) Be constructed in
                                          are necessary to ensure that the                        events.                                               uplands, (2) receive water from another
                                          proposed activities will result in no                      This NWP authorizes the restoration                water of the United States, (3) divert
                                          more than minimal adverse effects. We                   of uplands damaged by a discrete event,               water to another water of the United
                                          recognize that the pre-construction                     in cases where there is no available                  States, and (4) be determined to be
                                          notification requirement imposes an                     authorization to restore those areas.                 waters of the United States. These four
                                          additional burden on project                            There would be no original                            criteria will limit the use of this NWP
                                          proponents, but we do not believe that                  authorization for natural uplands that                to those ditches and canals that
                                          it is inequitable or, in most                           were damaged by a discrete event. Man-                generally provide few aquatic resource
                                          circumstances, substantial. The district                made uplands may have been                            functions. This proposed NWP does not
                                          engineer has discretionary authority to                 constructed without the need to obtain                authorize discharges of dredged or fill
                                          require an individual permit for any                    a Department of the Army permit.                      material into ditches or canals that were
                                          proposed activity that will have more                      Activities authorized by NWP must                  constructed in waters of the United
                                          than minimal individual or cumulative                   comply with general condition 10, Fills               States, such as streams.
                                          adverse effects on the environment, and                 within 100-year Floodplains, which                       Several commenters supported the
                                          the pre-construction notification                       requires all NWP activities to comply                 new NWP. Several commenters stated
                                          requirement is necessary for the                        with any applicable FEMA-approved                     that the limits for this NWP are too high
                                          effective use of this authority. When                   state or local floodplain management                  to prevent more than minimal impacts
                                          reviewing pre-construction                              requirements. We do not agree that there              on the aquatic ecosystem, particularly to
                                          notifications, district engineers will use              should be a prohibition against                       flood storage and water quality. Several
                                          available information, including                        rebuilding structures in floodplains.                 commenters recommended establishing
                                          documentation provided by permit                        Such decisions should be made by the                  a 300 linear foot threshold for pre-
                                          applicants in accordance with the                       appropriate state or local authorities, in            construction notification and a 1⁄2 acre
                                          ‘‘Notification’’ provision of this NWP, to              accordance with FEMA-approved                         limit on permitted impacts, in order to
                                          determine the pre-existing conditions. If               floodplain management requirements.                   be consistent with other NWPs. Another
                                          maps or photographs are not available,                     A number of commenters stated that                 commenter stated that filling ditches
                                          the district engineer’s judgment will be                the terms of the NWP were                             should not be allowed without an
                                          used.                                                   contradictory with regards to the start               assessment of how the hydrology was
                                             One commenter stated that this NWP                   date of the authorized activity. These                altered when the ditch was created and
                                          could interfere with tribal rights,                     commenters requested clarification as to              how the hydrology and water quality
                                          including treaty fishing access, and that               whether the work must commence                        would be affected if it is filled. Another
                                          it could severely impact anadromous                     within two years from the date of the                 commenter recommended requiring pre-
                                          salmonid habitat.                                       damages or from the date the pre-                     construction notification for all
                                             District engineers can impose special                construction notification is filed.                   activities under this NWP, because
                                          conditions or assert discretionary                         We have modified the text of this                  authorized activities could result in
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                                          authority and require an individual                     NWP to clarify that activities authorized             isolating wetlands that are adjacent to
                                          permit for projects that have more than                 by this permit must commence, or be                   the ditches and severing the migratory
                                          minimal adverse effect on the aquatic                   under contract to commence, within                    pathways of aquatic organisms. On the
                                          environment or other public interest                    two years of the date of damage. This                 other hand, one commenter stated that
                                          factors. Furthermore, activities                        change will make the second paragraph                 since the ditches regulated by this


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                                          permit have been determined to provide                     Several commenters stated that the                 ditches refers to situations where the
                                          few aquatic resource functions, the                     proposed NWP is contrary to Section                   ditch constructed in uplands receives
                                          thresholds for pre-construction                         404(e) of the Clean Water Act because                 surface water flow from another water of
                                          notification and limits for permitted                   it is not a general permit for a category             the United States that existed prior to
                                          impacts should be increased. Similarly,                 of activities that are similar in nature              the construction of that upland ditch.
                                          one commenter suggested that this NWP                   but rather a permit for a category of                    To ensure that this NWP authorizes
                                          should not have any limits, because the                 waters, and that the Corps has no                     only those activities with minimal
                                          regulated ditches are not natural.                      authority to issue a permit for a category            individual and cumulative adverse
                                             This NWP authorizes discharges of                    of waters. One commenter suggested                    effects on the aquatic environment, we
                                          dredged or fill material into certain                   that the Corps clarify that the NWP is                have limited this NWP to discharges of
                                          types of ditches. Those ditches must                    not limited to situations where the                   dredged or fill material into non-tidal
                                          meet all of the criteria listed in the first            landowner seeks to return his or her                  ditches. In addition, it does not
                                          paragraph of the NWP. To ensure that                    land to its prior condition. One                      authorize discharges of dredged or fill
                                          this NWP is used only to authorize                      commenter requested clarification on                  material into navigable waters of the
                                          discharges into those types of ditches,                 whether impacts to roadside ditches for               United States (i.e., section 10 waters).
                                          and to ensure that those activities result              road improvements can be permitted                    We have removed the word ‘‘canal’’
                                          in minimal adverse effects on the                       under this NWP, or if NWP 14 would be                 from this NWP, to provide further
                                          aquatic environment, we are requiring                   applicable. Similarly, another                        clarity since canals may be navigable
                                          pre-construction notification for all                   commenter suggested that fill for access              waters of the United States. Discharges
                                          activities. To address concerns                         roads should be included in this NWP.                 into a non-tidal ditch that flows into a
                                          regarding the jurisdictional status of the                 We expect that this NWP will be                    tidal water could be covered under
                                          waters of the United States other than                  mostly used by landowners to return                   NWP 46, but not discharges into a
                                          the ditch to be filled, we have changed                 ditches or portions of ditches to their               ‘‘tidal’’ ditch, i.e., one into which tidal
                                          the text of this NWP to state that those                prior upland condition. However, this                 waters flow.
                                          other waters had to have been waters of                 NWP may also authorize ditch                             A number of commenters questioned
                                          the United States prior to the                          relocation and reshaping activities. To               or requested clarification of Corps
                                                                                                  help ensure that this NWP only                        jurisdiction over ditches following the
                                          construction of the ditch. Therefore, the
                                                                                                  authorizes activities with minimal                    Supreme Court decisions in Rapanos
                                          jurisdictional status of those waters
                                                                                                  individual and cumulative adverse                     and Carabell. One commenter requested
                                          should remain unchanged after the
                                                                                                  effects on the aquatic environment, we                clarification on whether the term ‘‘water
                                          ditch is filled.
                                                                                                  have added language stating that this                 of the United States’’ includes wetlands
                                             We are retaining the proposed one                                                                          or only waterbodies, and whether a
                                                                                                  NWP does not authorize discharges of
                                          acre limit for this NWP. We believe that                                                                      ditch connecting two wetlands would
                                                                                                  dredged or fill material that will
                                          the applicable provisions and terms and                                                                       qualify for authorization under this
                                                                                                  increase the drainage capacity of the
                                          conditions, including the general                                                                             NWP. One commenter suggested
                                                                                                  ditch and will drain other waters of the
                                          conditions, the pre-construction                                                                              providing guidelines for or examples of
                                                                                                  United States. In the event that the ditch
                                          notification requirements, and the                                                                            the information required to determine
                                                                                                  is returned to its prior upland condition,
                                          ability of division and district engineers                                                                    that a ditch was constructed in uplands.
                                                                                                  the Corps would no longer have
                                          to assert discretionary authority and                   regulatory jurisdiction over that ditch.                 This NWP can be used to authorize
                                          impose regional and case-specific                       This NWP may authorize discharges of                  discharges of dredged or fill material
                                          conditions on this NWP, will ensure                     dredged or fill material into roadside                into ditches that meet the four criteria
                                          that the activities authorized will result              ditches, provided those ditches meet all              in the first paragraph, as well as the
                                          in no more than minimal individual and                  four criteria specified in the first                  other terms and conditions of this NWP.
                                          cumulative adverse effects on the                       paragraph of this NWP. Access roads                   The waters of the United States other
                                          aquatic environment.                                    may be authorized by other NWPs,                      than the ditch constructed in uplands
                                             One commenter stated that a                          regional general permits, or individual               may consist of wetlands, open waters, or
                                          determination of absence or presence of                 permits.                                              both. This preamble does not address
                                          salmonids should be required in                            One commenter requested                            the limits of jurisdiction after Rapanos
                                          channels potentially accessible by                      clarification as to whether all four or               and Carabell.
                                          anadromous salmonids. Another                           only one of the four eligibility criteria                Data used to determine whether a
                                          commenter said that this NWP should                     are needed for a project to be authorized             ditch was constructed in uplands may
                                          not authorize discharges of dredged or                  under this NWP. The same commenter                    be obtained from a variety of sources,
                                          fill material into streams.                             requested clarification on the eligibility            such as aerial photographs, soil surveys,
                                             Potential impacts to salmon species                  criterion ‘‘receive water from another                property maps, plans, plots or plats,
                                          will be considered by district engineers                waters of the United States.’’ One                    previous jurisdictional determinations
                                          during the review of pre-construction                   commenter asked whether this NWP                      and data sheets, topographical maps,
                                          notifications. General condition 2,                     could be used to authorize discharges of              wetland inventory maps, and
                                          Aquatic Life Movements, prohibits                       dredged or fill material into both tidal              photographs.
                                          activities which could disrupt the                      and non-tidal waters of the United                       One commenter stated that mitigation
                                          necessary life cycle movements of                       States. One commenter said that this                  should be required for impacts to
                                          aquatic species. If deemed appropriated,                NWP should not authorize discharges                   wetlands and aquatic life that may be
                                          this NWP can be regionally conditioned                  into canals, because canals can be large              established in those ditches. In contrast,
                                          by division engineers to limit or restrict              aquatic systems and the adverse                       another commenter stated that requiring
                                          the use of this NWP in waters accessible                environmental effects could be more                   mitigation for reversion to a prior
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                                          to anadromous salmonid species. The                     than minimal.                                         upland condition is excessive and
                                          text of this NWP clearly states that it                    This NWP applies only to those                     unreasonable.
                                          does not authorize discharges into                      ditches that meet all four criteria                      We do not believe that it would be
                                          streams, or streams that have been                      specified in the first paragraph of the               appropriate or practical to establish a
                                          relocated into uplands.                                 NWP. The second criterion for eligible                national standard requiring mitigation


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                                          for all activities authorized by this                   or fill material into them provided all               Two commenters stated that acreage
                                          NWP. The need for compensatory                          conditions for its use are met.                       limits should be placed on the NWP.
                                          mitigation to ensure minimal individual                    One commenter recommended                          One commenter remarked that access
                                          and cumulative adverse effects will be                  providing definitions for ‘‘ditch’’ and               roads should be authorized by the NWP
                                          made by district engineers on a case-by-                ‘‘canal’’.                                            because problems will occur when an
                                          case basis, in response to pre-                            We believe that district engineers                 activity requires use of multiple NWPs
                                          construction notifications. We believe                  should maintain the discretion to                     and one of the other NWPs has an
                                          that the provisions of general conditions               determine on a case-by-case basis                     acreage limit.
                                          27 and 20 will allow the district                       whether particular features are ditches                  We disagree with the first two
                                          engineer to determine if any                            or canals and also are waters of the                  comments of the preceding paragraph.
                                          compensatory mitigation is needed to                    United States.                                        Pipeline inspections are critical
                                          reduce the effects of the activities                       Proposed NWP B is issued as NWP 46                 activities related to the repair of these
                                          authorized under this permit to the                     with the modifications discussed above.               pipelines. In certain instances it is
                                          minimal level.                                             NWP 47. Pipeline Safety Program                    necessary that the pipeline be visually
                                                                                                  Designated Time Sensitive Inspections                 inspected, and this permit allows
                                            One commenter suggested that the
                                                                                                  and Repairs. In the September 26, 2006,               excavation to expose the pipeline.
                                          one-acre limit should not apply if the
                                                                                                  Federal Register notice, we proposed                  Impacts authorized under this NWP will
                                          impacted ditch is replaced with another
                                                                                                  this NWP (as proposed NWP C) to                       be temporary in nature so the aquatic
                                          ditch that would perform the same
                                                                                                  authorize the inspection, repair,                     resources will recover over time. This
                                          functions.
                                                                                                  rehabilitation, or replacement of any                 NWP provides Department of the Army
                                            Although this NWP may be used to
                                                                                                  currently serviceable structure or fill for           authorization for the repair,
                                          authorize discharges of dredged or fill                 pipelines that are determined to be
                                          material into ditches for the purpose of                                                                      rehabilitation, or replacement of
                                                                                                  time-sensitive in accordance with the                 currently serviceable pipelines. These
                                          relocating those ditches, the one acre                  Pipeline and Hazardous Materials Safety
                                          limit applies to the loss of waters of the                                                                    pipelines are unlikely to become
                                                                                                  Administration’s Pipeline Safety                      unserviceable as a result of neglect,
                                          United States that results from the                     Program (PHP), including its criteria at
                                          discharge of dredged or fill material into                                                                    since operators are required to
                                                                                                  49 CFR parts 192 and 195.                             periodically inspect these pipelines and
                                          the existing ditch.                                        Thirteen comment letters were
                                            One commenter requested                                                                                     make necessary repairs or replacements.
                                                                                                  received concerning this proposed NWP                 We do not believe acreage limits are
                                          clarification on how the ‘‘constructed in               with six expressing strong support for                necessary, given the nature of the
                                          uplands’’ criterion reconciles with                     its issuance but also inquiring about the             category of activities authorized by this
                                          Corps policy at 51 FR 41217, under                      applicability of general conditions 17                NWP. Access roads will not generally
                                          which ditches excavated on dry land are                 (Endangered Species) and 18 (Historic                 need to be constructed to conduct the
                                          generally not waters of the United                      Properties) to the use of the permit. Six             pipeline inspection and repair, since
                                          States.                                                 commenters recommended that the                       access roads would likely have been
                                            The proposed NWP is consistent with                   Corps enter into programmatic ESA                     built at the time the pipeline was
                                          the policy established in the November                  consultation with PHP and the U.S. Fish               constructed, or the terrain will not
                                          13, 1986 Federal Register Notice (51 FR                 and Wildlife Service and the National                 impede access to the pipeline. If
                                          41217), because that policy also states                 Marine Fisheries Service.                             temporary access roads are necessary to
                                          that the Corps reserves the right on a                     This NWP only authorizes activities                conduct the pipeline inspection and
                                          case-by-case basis to determine whether                 that are included in the U.S. Department              repair activity, they are authorized by
                                          non-tidal ditches excavated on dry land                 of Transportation’s Pipeline Repair and               this NWP as long as they are removed
                                          or other features constitute waters of the              Environmental Guidance System                         upon completion of the work. This NWP
                                          United States.                                          (PREGS). The PHP is the lead Federal                  requires that all temporary structures
                                            One commenter requested                               agency for these activities and, as such,             and fill be removed and the area
                                          clarification on how this NWP                           conducts any Section 7 consultation                   restored to preconstruction elevations.
                                          reconciles with the Section 404                         required under the Endangered Species                 We have modified paragraph (c) of this
                                          exemption for construction and                          Act and consultation required under                   NWP so that it is consistent with general
                                          maintenance of irrigation ditches at 33                 Section 106 of the National Historic                  condition 13, Removal of Temporary
                                          CFR 323.4(a)(3).                                        Preservation Act. In cases where PHP                  Fills.
                                            The Section 404 exemption at 33 CFR                   has not conducted consultation required                  One commenter inquired as to why
                                          323.4(a)(3) applies to construction and                 by either Section 7 of the Endangered                 temporary activities are included in the
                                          maintenance of irrigation ditches or the                Species Act, or Section 106 of the                    proposed NWP when this work is being
                                          maintenance of drainage ditches. This                   National Historic Preservation Act,                   removed from other NWPs that
                                          NWP authorizes activities not covered                   permittees are required by 33 CFR                     authorize maintenance. Two
                                          in the exemption, such as discharges of                 330.4(f) and (g) to notify the Corps if               commenters requested we add a pre-
                                          dredged or fill material to restore the                 there are threatened or endangered                    construction notification requirement
                                          area to its previous upland condition.                  species or critical habitat, or historic              for environmentally sensitive areas. One
                                            One commenter stated that this NWP                    properties that might be affected or are              commenter said the pre-construction
                                          should not be issued because it is                      in the vicinity of the project.                       notification should be required for all
                                          contrary to the Congressional intention                    One commenter declared that                        activities. Two commenters were against
                                          that ditches should be regulated as point               ‘‘inspections’’ should be removed from                and one commenter supported
                                          sources and not as navigable waters.                    the list of authorized activities since               prohibiting division engineers from
                                            This preamble does not address the                    technology exists which allows pipeline               placing regional conditions on the NWP.
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                                          limits of Clean Water Act jurisdiction.                 operators to evaluate a pipeline without                 Since the objective of this NWP is to
                                          To the extent that ditches are                          the need to visually inspect it. One                  authorize inspections and repairs for
                                          determined to be waters of the United                   commenter said that this NWP should                   eligible pipelines in a timely manner,
                                          States, this permit provides                            not authorize the repair of pipelines that            the NWP authorizes temporary activities
                                          authorization for discharges of dredged                 have deteriorated as a result of neglect.             necessary to conduct the inspection,


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                                          repair, rehabilitation, or replacement                     The majority of commenters                         After review of the comments and of
                                          activity. We do not agree that it is                    expressed their support for this new                  scientific literature, we have modified
                                          necessary to require pre-construction                   NWP, stating that existing commercial                 the pre-construction notification
                                          notification for these activities, since                shellfish operations do not have more                 requirements. Pre-construction
                                          PHP is the lead Federal agency for these                than minimal adverse impacts on the                   notification will be required if the
                                          activities. Submitting a pre-construction               aquatic environment and contribute                    project area is greater than 100 acres or
                                          notification when a pipeline is in                      benefits to the ecosystem that balance                if the operation conducts any of the
                                          critical need for repair will delay the                 any adverse impact. Referencing                       following activities: any reconfiguration
                                          repair and increase the risk that the                   numerous scientific studies as evidence               of the aquaculture activity, such as
                                          pipeline will leak and cause more                       of the beneficial aspects of shellfish                relocating existing operations into
                                          damage to the aquatic environment,                      culture, many of these commenters                     portions of the project area not
                                          particularly environmentally sensitive                  expressed their desire for the 25-acre                previously used for aquaculture
                                          areas. Given the nature of the activities               threshold for pre-construction                        activities; a change in species being
                                          authorized by this NWP, as well as its                  notification to be raised considerably, or            cultivated; a change in culture methods
                                          objective of authorizing these activities               eliminated entirely, stating it was                   (e.g., from bottom culture to off-bottom
                                          in a timely manner, we believe it is                    arbitrary and created an unnecessary                  culture); or dredge harvesting, tilling, or
                                          unnecessary for division engineers to                   bureaucratic paperwork burden for the                 harrowing in areas inhabited by
                                          regionally condition this NWP.                          operators and the Corps. In addition,                 submerged aquatic vegetation. We do
                                          However, division engineers can impose                  many commenters recommended that                      not believe it is necessary to require pre-
                                          regional conditions on this NWP that                    the NWP not be limited only to existing               construction notification for on-going
                                          are limited to measures necessary to                    operations but also be available for the              operations, unless the project area is
                                          minimize adverse effects to the aquatic                 expansion of existing operations and for              greater than 100 acres or the operation
                                          environment, as long as those regional                  new operations. One commenter                         involves dredge harvesting, tilling, or
                                          conditions do not require pre-                          supported limiting this NWP to existing               harrowing in areas inhabited by
                                          construction notification or cause delays               operations. A few commenters objected                 submerged aquatic vegetation, since on-
                                          to inspection and repair activities. We                 to the issuance of this NWP, stating that             going operations not meeting these
                                          have added a ‘‘Note’’ to this NWP to                    commercial shellfish aquaculture                      criteria are unlikely to result in
                                          explain what types of regional                          operations of unlimited size threaten                 significant adverse environmental
                                          conditions may be added by division                     submerged aquatic vegetation,                         effects. However, in order to generate
                                          engineers.                                              shorebirds, and other estuarine                       better information for future permitting
                                             Two commenters suggested that in                     resources, and potentially exceed the                 decisions, for those activities that do not
                                          order for water quality certifications to               minimal impact threshold, both                        require pre-construction notification, we
                                          be issued, a list of ‘‘time-sensitive’’                 individually and cumulatively. Several                are requiring operators to submit a brief
                                          activities as well as appropriate best                  commenters believed that potential for                report that will provide the district
                                          management practices must be provided                   adverse impacts was related more to                   engineer with basic information on the
                                          by PHP and an opportunity for public                    specific activities than to the geographic            activity. The report must include the
                                          comment should be given for the best                    extent of an operation, and that whether              size of the project area, the location of
                                          management practices. One commenter                     an operation engaged in these activities              the aquaculture operations, a brief
                                          stated PHP has not made all the best                    was thus a better basis for limits or pre-            description of the culture methods used,
                                          management practices available to the                   construction notification thresholds.                 a brief description of the harvesting
                                          pipeline operators yet.                                 One commenter recommended requiring                   method(s) used, the name(s) of the
                                             We do not agree that it is either                    pre-construction notification for the use             cultivated species, and a statement
                                          necessary or feasible to provide a list of              of canopy predator nets that cover broad              addressing whether canopy predator
                                          time-sensitive activities or best                       areas of an aquaculture operation                     nets will be used. For each existing
                                          management practices for states, Indian                 because of potential impacts to a variety             operation not submitting a pre-
                                          tribes, and EPA to make their water                     of aquatic species. One commenter                     construction notification, the report
                                          quality certification decisions for this                recommended requiring pre-                            needs to be submitted within 90 days of
                                          NWP. In response to concerns raised by                  construction notification for all                     the effective date of this NWP.
                                          states or tribes through the water quality              activities authorized by this NWP, while              Following submission of this one-time
                                          certification process, districts may add                another commenter suggested a simple                  report, no further reporting is necessary.
                                          regional conditions as long as they do                  reporting requirement in lieu of a pre-               However, if there are any changes to the
                                          not preclude its use for time sensitive                 construction notification.                            operation that require Department of the
                                          repairs. Identification of time-sensitive                  Since shellfish improve water quality              Army (DA) authorization, then pre-
                                          activities will be made in the future, as               and increase food production, we                      construction notification is required if
                                          the program is implemented. Best                        believe that there is generally a net                 the proposed changes meet any of the
                                          management practices may vary by                        increase in aquatic resource functions in             pre-construction notification triggers.
                                          region, and we do not believe it is                     estuaries or bays where shellfish are                 Depending on the region and culture
                                          necessary for PHP to solicit public                     produced. We do not believe it is                     method used, there may be additional
                                          comment on those best management                        necessary to require pre-construction                 restrictions (e.g., limits on timing of
                                          practices prior to implementing this                    notification for all activities authorized            certain activities) that are necessary to
                                          NWP.                                                    by this NWP, including those that                     further minimize impacts to aquatic
                                             Proposed NWP C is issued as NWP 47                   involve canopy predator nets. Concerns                resources. These regional concerns are
                                          with the modifications discussed above.                 regarding the use of canopy predator                  best addressed by district engineers in
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                                             NWP 48. Existing Commercial                          nets are more appropriately address                   coordination with State and local
                                          Shellfish Aquaculture Activities. We                    through regional conditions imposed by                agencies and handled through regional
                                          proposed to issue this new NWP to                       division engineers, or by special                     conditioning.
                                          authorize ongoing shellfish aquaculture                 conditions added to NWP                                  Many commenters were confused
                                          activities throughout the United States.                authorizations by district engineers.                 about the definitions of ‘‘existing


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                                          operation’’ and ‘‘project area’’ and                    authorize new commercial shellfish                    office will review the project, in
                                          requested clarification of these terms.                 aquaculture operations and the                        coordination with appropriate resource
                                             For the purposes of this NWP, an                     expansion of existing operations in the               agencies, within a 45-day timeframe and
                                          existing operation is one that has been                 next NWP re-issuance cycle. The                       respond to the applicant with either a
                                          granted a permit, license, or lease from                information gathered through the pre-                 verification of the applicability of the
                                          a state or local agency specifically                    construction notification process and                 NWP or a determination that an
                                          authorizing commercial aquaculture                      reporting requirement for existing                    individual permit, or other type of DA
                                          activities and which has undertaken                     operations in the current NWP will                    permit, is required. If the applicant does
                                          such activities prior to the date of                    support this effort.                                  not hear back from the Corps within 45
                                          issuance of this NWP. For the purposes                     Several commenters expressed                       days, he or she may assume that the
                                          of this NWP, the project area is defined                confusion regarding whether ongoing                   operation is authorized by the NWP.
                                          as the area of waters of the United States              commercial shellfish operations require                  A pre-construction notification is a
                                          occupied by the existing operation. In                  reauthorization under this NWP, if those              brief document that is intended to
                                          most cases, the project area will consist               existing operations have previously                   provide the district engineer with
                                          of the area covered by the state or local               been permitted by the Corps.                          enough information to determine
                                          aquaculture permit, license, or lease.                     Existing operations previously                     whether an activity is authorized by
                                          The project area may consist of several                 authorized by another NWP or another                  NWP. The information requirements for
                                          sites that are not contiguous. The project              form of DA permit, such as a regional                 a pre-construction notification are listed
                                          area may include areas in which there                   general permit or an individual permit,               in paragraph (b) of general condition 27,
                                          has been no previous aquaculture                        are covered until the expiration of the               Pre-Construction Notification. Detailed
                                          activity and/or areas that periodically                 original permit. If the operator wishes to            studies or analyses are not required for
                                          are allowed to lie fallow as part of                    continue, and the operation’s size,                   pre-construction notifications. The
                                          normal operations. Relocation of                        conditions, and/or practices trigger the              required description of the direct and
                                          existing operations into portions of the                pre-construction notification                         indirect adverse environmental effects
                                          project area not previously used for                    requirements of this NWP, then a pre-                 that are expected to result from the
                                          aquaculture activities may be authorized                construction notification must be                     NWP activity should be brief, but with
                                          by this NWP but will require a pre-                     submitted to the appropriate district                 sufficient detail to allow the district
                                          construction notification. Cultivation in               office for review prior to the expiration             engineer to determine whether the
                                          areas that were previously used but                     date of the original permit in order to               adverse environmental effects will be
                                          allowed to lie fallow does not require a                remain in compliance with Federal                     minimal and assess the need for
                                          pre-construction notification. Operators                laws. If the pre-construction notification            compensatory mitigation. The
                                          should maintain appropriate                             requirements are not triggered, the                   description for the pre-construction
                                          documentation showing which areas                       operator must submit the required brief               notification should include the size of
                                          were previously cultivated.                             report within 90 days of the beginning                the project area, the name(s) of the
                                             This NWP is limited to work                          of coverage under this NWP.                           species being cultivated, the types of
                                          associated with the continued operation                    This NWP authorizes the continued                  cultivation methods (e.g., long lines,
                                          of existing commercial shellfish                        operation of existing commercial                      bottom culture, rack and bags), and the
                                          operations, many of which have been in                  shellfish aquaculture operations. The                 harvesting method (e.g., hand pick,
                                          place for hundreds of years. The                        continued operation of an aquaculture                 dredge, long line harvest). The
                                          potential for adverse environmental                     activity may involve removing and                     description should also state when
                                          impacts from such existing operations is                replacing structures in navigable waters              dredge harvesting, harrowing, or tilling
                                          minimal, and we support the objectives                  of the United States on a recurring basis             will occur in waters with SAV.
                                          of the U.S. Department of Commerce’s                    and requires a current DA permit.                        For all projects that do not trigger the
                                          Aquaculture Policy to increase shellfish                However, if an operator is installing a               pre-construction notification
                                          productivity in this country. Although                  fixed structure, the construction period              requirements of the NWP, submission of
                                          we believe new projects and the                         for a DA permit is the period of time                 a brief report is required. This reporting
                                          expansion of existing operations are also               where the permittee is authorized to                  requirement will help us monitor the
                                          unlikely to have a high potential for                   conduct work in navigable waters of the               use of this NWP, to help ensure that it
                                          adverse affects on the aquatic                          United States and/or discharge dredged                authorizes only those activities that
                                          environment, without an established                     or fill material into waters of the United            have minimal individual and
                                          data set from which to work, we are not                 States. Once the DA permit expires,                   cumulative adverse effects on the
                                          prepared to include them in this NWP                    further authorization is not required to              aquatic environment and other public
                                          at this time. Although new projects and                 maintain the structures or fills, but if              interest review factors. We have
                                          the expansion of existing operations are                additional work in navigable waters or                attempted to keep the reporting
                                          not authorized initially by this NWP,                   discharges of dredged or fill material in             requirement as simple as possible, to
                                          once authorized by another form of DA                   jurisdictional waters are necessary for               minimize administrative burdens on
                                          permit, such as a regional general                      the continued operation of those                      operators.
                                          permit or an individual permit, the                     activities, then another DA permit is                    A few commenters suggested that
                                          commercial shellfish activities may                     required.                                             NWP 48 is unnecessary because NWPs
                                          continue in accordance with the terms                      Many commenters were confused                      4 and 27 adequately cover all the needs
                                          and conditions of the issued permit                     about the requirement to submit a pre-                of commercial shellfish operations.
                                          and/or this NWP. Division engineers                     construction notification, assuming that                 Although shellfish seeding activities
                                          will conduct regional reviews of                        having to submit a pre-construction                   were authorized by previous versions of
                                          commercial shellfish aquaculture                        notification meant that an individual                 NWP 4, that NWP did not authorize
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                                          activities in coordination with                         permit would be required. The                         additional structures or work in
                                          interested agencies and shellfish                       requirement to submit a pre-                          navigable waters commonly associated
                                          producers over the next 5 years. After                  construction notification does not mean               with commercial shellfish aquaculture
                                          these reviews are completed, we may be                  that an individual permit will be                     activities, such as the installation of
                                          prepared to propose an NWP to                           required. Instead, it means that a district           stakes and netting in navigable waters to


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                                          11146                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          prevent predators from feeding upon the                 anyway. This NWP authorizes                           planting substrate. Examples of
                                          shellfish. Because of the issuance of this              discharges of dredged or fill material                commercial shellfish species for which
                                          NWP and the modification of NWP 27,                     into waters of the United States only for             this NWP may be used to authorize
                                          it is no longer necessary to include                    shellfish seeding, rearing, cultivating,              existing commercial aquaculture
                                          shellfish seeding in the list of activities             transplanting, and harvesting activities              activities include oysters, clams,
                                          authorized by NWP 4 and we have                         for on-going commercial shellfish                     geoducks, mussels, and scallops. The
                                          removed it. NWP 27 does not cover                       aquaculture activities. With the                      proposed NWP does not authorize
                                          commercial shellfish operations. It                     exception of harvesting activities, such              commercial aquaculture activities for
                                          covers shellfish habitat restoration                    discharges usually enhance habitat                    crustaceans or finfish. Types of gear
                                          activities, including shellfish seeding,                characteristics to support the growth of              specific to a particular region or species
                                          that are conducted to restore shellfish                 shellfish. As for harvesting activities,              are best evaluated on a regional basis by
                                          populations. Restored populations may,                  pre-construction notification is required             the district engineer and can be
                                          at some future date, be subject to                      for dredge harvesting in areas inhabited              addressed through regional conditions.
                                          recreational harvesting; but the purpose                by submerged aquatic vegetation, so                      There are different types of shellfish
                                          of activities conducted under NWP 27 is                 case-by-case review will be conducted                 seed that can be used to increase
                                          restoration, not commercial aquaculture.                to determine if the activity results in               shellfish production. Shellfish seed may
                                          Although NWP 48 represents a change                     more than minimal adverse effects on                  consist of immature individual
                                          in how commercial shellfishing                          the aquatic environment. Pre-                         shellfish, an individual shellfish
                                          operations are being regulated by the                   construction notification is also                     attached to a shell or shell fragment (i.e.,
                                          Corps, structures and other work in                     required for tilling and harrowing in                 spat on shell) and shellfish shells, shell
                                          navigable waters of the United States                   submerged aquatic vegetation. Other                   fragments, and/or shell fragments mixed
                                          have been regulated activities for                      harvesting activities that are part of on-            with gravel/concrete/limestone placed
                                          decades. Discharges of dredged or fill                  going activities are unlikely to result in            into waters to provide a substrate for
                                          material into waters of the United States               more than minimal adverse effects.                    attachment by free swimming shellfish
                                          have been regulated under Section 404                   Division engineers may impose regional                larvae (i.e., natural catch). Several
                                          of the Clean Water Act since 1972, but                  conditions on this NWP to further                     commenters asked that we clarify the
                                          the definitions of these terms have                     restrict cultivation or harvesting                    definition of shellfish seeding. We have
                                          changed over the years. Individual                      practices or to require pre-construction              provided a definition of shellfish
                                          permits remain a permitting tool that                   notification for additional practices that            seeding in the ‘‘Definitions’’ section of
                                          will be necessary in some                               may be of concern within a particular                 the NWPs. This definition was based on
                                          circumstances. There are several                        area.                                                 the definition provided in the preamble
                                          districts that currently have regional                     Many commenters expressed concern                  to the September 26, 2006, Federal
                                          general permits in place to authorize                   over whether the gear associated with                 Register notice (71 FR 56275).
                                          aquaculture activities and more general                 commercial shellfish culture would be                    Most commenters asked that we
                                          permits are expected to be developed.                   authorized by this NWP, noting that                   clarify our definition of submerged
                                             In the preamble to the September 26,                 much of the in-water gear serves as                   aquatic vegetation (SAV) and asked that
                                          2006, proposal, we solicited comments                   habitat for other aquatic species and is              we limit our concern to those species of
                                          on whether to impose limits on the                      necessary for the success of a                        aquatic vegetation that have been shown
                                          quantity of dredged or fill material that               commercial shellfish venture. Other                   to have beneficial environmental effects.
                                          could be discharged into navigable                      commenters expressed concern over the                 Some commenters expressed concern
                                          waters under this NWP. One commenter                    waste and trash left by geoduck                       that any commercial aquaculture
                                          said that this NWP should be                            operations and the adverse impacts that               activity would have a negative impact
                                          conditioned to prohibit discharges of                   litter has on the surrounding intertidal              on SAV and therefore this NWP should
                                          dredged or fill material or to require pre-             environment.                                          not be issued. Many commenters asked
                                          construction notification for each                         This NWP authorizes structures or                  that we remove the pre-construction
                                          activity involving such discharges.                     work in navigable waters of the United                notification requirement for operations
                                          Many commenters stated that there                       States, as well as discharges of dredged              having more than 10 acres of the project
                                          should be no limitation on the quantity                 or fill material into all waters of the               area occupied by SAV, stating that
                                          of dredged or fill material that could be               United States for the purposes of the                 shellfish beds clarify the water thereby
                                          discharged into navigable waters                        commercial seeding, rearing,                          increasing the likelihood that SAV
                                          because the cost of such material is                    cultivating, transplanting, and                       would colonize their project area. A few
                                          limiting and also because most of the                   harvesting of shellfish, which may                    commenters suggested that we define
                                          material is removed during harvest.                     involve the installation of buoys, floats,            the density of bed and length of time
                                          Many mentioned large Federal                            racks, trays, nets, lines, tubes, and                 present (i.e., recognize seasonal
                                          restoration projects that have utilized                 containers, as well as other associated               population fluctuation) necessary to
                                          shellfish seeding methods to enhance                    structures and work. The language of                  trigger the reporting requirement.
                                          estuaries. Several commenters objected                  the NWP has been modified to clarify                     Commercial shellfish aquaculture
                                          to having no limits and several                         that it does not authorize the discharge              activities often take place in, and are
                                          suggested limiting the discharge to 3 to                of dredged or fill material into waters of            found to co-exist with, intertidal areas
                                          6 inches or a certain percentage of the                 the United States for attendant features              that are occupied by submerged aquatic
                                          water column. Several others indicated                  of commercial aquaculture operations                  vegetation (i.e., vegetated shallows). The
                                          that materials such as marl, concrete,                  such as boat ramps, stockpiles, staging               definition of vegetated shallows (see
                                          and gravel, in addition to shell and shell              areas, and moorings or for the                        Part D, Definitions) clarifies that
                                          fragments, should be included in the                    deposition of shell material back into                vegetated shallows are those areas that
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                                          material authorized for discharge.                      tidal waters as a waste material. As                  are permanently inundated and under
                                             It would be illogical to prohibit                    stated above, discharges of dredged or                normal circumstances have rooted
                                          discharges of dredged or fill material                  fill material below the high tide line/               aquatic vegetation, such as seagrasses in
                                          under this permit, since without such                   ordinary high water mark must be of the               marine and estuarine systems and a
                                          discharges, no permit is required                       minimum necessary to provide suitable                 variety of vascular rooted plants in


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11147

                                          freshwater systems. Macroalgae are not                  involves activities subject to the Corps              Service should be conducted before the
                                          included in our definition of SAV nor                   regulatory jurisdiction.                              activity is authorized by this NWP.
                                          is it our intent to provide protection for                 Producers must be licensed, as                       The Corps does not regulate
                                          noxious or invasive species such as                     required, through their State’s                       application of pesticides under Section
                                          Zostera japonica. However, to minimize                  regulatory agency. Commercial harvest                 10 of the Rivers and Harbors Act of 1899
                                          adverse effects to valuable aquatic                     will only commence under each State’s                 or Section 404 of the Clean Water Act.
                                          habitat, such as shallows vegetated by                  Shellfish Authority, as delegated by the              The application of pesticides into
                                          species such as Zostera marina, we are                  U.S. Food and Drug Administration                     aquatic environments is regulated by
                                          requiring pre-construction notification                 under the National Shellfish Sanitation               other agencies through other authorities.
                                          for dredge harvesting, tilling, or                      Program. To be eligible for coverage                  We do not agree that pre-construction
                                          harrowing in areas inhabited by SAV.                    under this NWP, producers must obtain                 notification should be required for on-
                                          To capture the regional variances, such                 all required permits or licenses required             going commercial shellfish aquaculture
                                          as colonization rate, population shifts,                for their culture activities, such as                 activities being conducted in areas
                                          density, and species composition,                       transfer permits, development permits,                under the purview of the National Park
                                          districts may choose to further refine the              and land-use permits.                                 Service. The National Park Service has
                                          definition of SAV in their regional                        In response to commenters concerned                the authority to control the activities
                                          conditions to better reflect                            about the individual and cumulative                   conducted in its units, to ensure that
                                          environmental circumstances in their                    adverse effects to the environment and                those activities are consistent with any
                                          region. We are removing the proposed                    the many commenters who stated that                   management requirements or objectives
                                          requirement to submit a pre-                            acreage limits were not an adequate way               established for those units.
                                          construction notification if the project                of establishing or evaluating the                       Proposed NWP D is issued as NWP
                                          area includes 10 acres or more of SAV                   interaction of the shellfish operation                48, with the modifications discussed
                                          because we have determined that only                    with the aquatic environment, an                      above.
                                          certain types of activities (dredge                     additional pre-construction notification                NWP 49. Coal Remining Activities.
                                                                                                  threshold has been added. When an                     This is a new NWP. It provides for
                                          harvesting, tilling, harrowing) in SAV
                                                                                                  existing operation decides to change                  authorization of projects associated with
                                          areas have the potential to cause more
                                                                                                  culture methods, for example to go from               the remining and reclamation of lands
                                          than minimal adverse impacts.
                                                                                                  bottom-culture to long-line or from long-             that were previously mined for coal.
                                             The majority of commenters objected                                                                        New mining may be conducted on
                                                                                                  line to bottom culture, pre-construction
                                          to the proposed prohibition against the                                                                       adjacent areas provided that the area
                                                                                                  notification is required. These existing
                                          cultivation of new species by an                                                                              mined is smaller than 40 percent of the
                                                                                                  operations may be authorized by this
                                          operation while recognizing the need to                 NWP, after the district engineer has                  previously mined lands plus the
                                          protect the environment from invasive                   reviewed the pre-construction                         unmined lands required to reclaim the
                                          species colonization. A few commenters                  notification and determined that the                  previously mined lands as determined
                                          were in favor of the prohibition citing                 new activity complies with the terms                  by SMCRA. Pre-construction
                                          concerns about invasive species and                     and conditions of the NWP and will                    notification is required for all activities
                                          changing culture methods. One                           have minimal adverse effects.                         proposed to be authorized by this
                                          commenter said that this NWP should                        We are also committed to conducting                permit, and the permittee must receive
                                          not authorize experimental cultivation                  programmatic reviews of commercial                    written notification from the District
                                          of new species in a waterbody.                          shellfish activities generally to ensure              Engineer prior to commencing the
                                             Upon review of the comments, the                     that the Corps is authorizing only those              activity. Additionally, the projects must
                                          proposed NWP has been modified                          activities that result in minimal                     be authorized by OSM or by states with
                                          slightly. The NWP does not authorize                    individual or cumulative adverse effects              approved programs under Title IV or V
                                          aquaculture activities for any species                  on the aquatic environment with this                  of SMCRA.
                                          that were not previously cultivated in                  NWP or other general permits for                        One commenter requested that the
                                          the waterbody. However, under this                      aquaculture activities. These reviews                 proposed NWP be changed to include
                                          NWP, an individual operator can change                  will begin as soon as possible in all                 Abandoned Mine Land (AML) projects
                                          the species grown under this NWP                        divisions, and will involve Federal,                  that are government funded or
                                          within the project area, provided the                   State and local agencies, stakeholders,               contracted. They believed that the
                                          change is limited to species that have                  and the general public to help the Corps              aquatic benefits resulting from the AML
                                          been previously cultivated in the water                 develop future regional and special                   projects are similar in nature to those
                                          body. Such a change would require pre-                  conditions to mitigate impacts to the                 that would be covered by this NWP, and
                                          construction notification. The                          aquatic environment or other aspects of               that since this NWP requires
                                          commercial production of a shellfish                    the public interest which may result                  notification, any adverse impacts to
                                          species that has not been previously                    from commercial shellfish aquaculture                 high-quality waters could be avoided.
                                          commercially produced in the                            activities. Completion of these                       Another commenter suggested that the
                                          waterbody, including new exotic (non-                   programmatic reviews is not necessary                 Corps clarify the extent to which NWPs
                                          native) species, may only be authorized                 for authorization under this NWP. The                 are required for AML projects, and
                                          by an individual permit or a regional                   data collected through the pre-                       another commenter stated that the Corps
                                          general permit if applicable. Also, this                construction notification and reporting               should clearly state that no NWP of any
                                          NWP does not authorize experimental                     requirements will support these                       kind is required for projects that fall
                                          cultivation of new species. It only                     reviews.                                              under Title IV of SMCRA. One
                                          authorizes on-going commercial                             One commenter said that this NWP                   commenter stated that it is imperative
                                          shellfish aquaculture activities,                       should include conditions prohibiting                 that the new NWP 49 proposed by the
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                                          provided those activities satisfy the                   the use of pesticides. A commenter                    Corps not inhibit efforts but rather
                                          terms and conditions of this NWP.                       stated that this NWP should require pre-              support recent actions by states, EPA,
                                          Experimental cultivation is considered                  construction notification for any activity            and OSM to encourage opportunities for
                                          to be a new activity, and may be                        located in National Park Service units,               remining AML impacted lands and
                                          authorized by other DA permits if it                    and that review by the National Park                  waters.


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                                          11148                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                             We agree that this NWP should                        adverse effects on the aquatic                        feet of stream limits should be included
                                          support and encourage opportunities for                 environment.                                          on a national basis for this NWP and did
                                          remining AML impacted lands and                            We would like to clarify that the                  not proposed such limits. If division
                                          waters. We are thus modifying the text                  ‘‘remined’’ area on which the 40 percent              engineers believe they need to add
                                          of this NWP to authorize AML projects                   ratio is based includes any unmined                   limits at a regional level to ensure that
                                          that include coal extraction authorized                 lands required to reclaim the previously              this NWP authorizes only activities with
                                          by Title IV of SMCRA, in addition to                    mined lands, as determined by the                     minimal adverse effects on the aquatic
                                          remining authorized under Title V. To                   SMCRA agency. The allowance for an                    environment and which satisfy other
                                          authorize Title IV AML projects that do                 additional 40 percent of newly mined                  public interest review factors, they may
                                          not involve coal extraction, we have                    area is above and beyond the area                     do so. We believe that at a national level
                                          modified NWP 37, which authorizes                       required to complete the restoration of               the ratio limitation and the requirement
                                          emergency watershed protection and                      the previously mined land. This NWP                   for an overall increase in aquatic
                                          rehabilitation activities. In response to               was intended to authorize single and                  function are sufficient to ensure that
                                                                                                  complete projects where a clear majority              this NWP authorize only activities that
                                          the comment that projects conducted
                                                                                                  of the mining would be considered                     produce no more than minimal adverse
                                          under Title IV of SMCRA should not
                                                                                                  remining, and therefore offer operators               impacts, both individually and
                                          require Section 404 authorization, any
                                                                                                  incentives to reclaim previously mined                cumulatively. Furthermore, this NWP is
                                          discharge of dredged or fill material into              lands. We thus believe that there needs               used to provide Section 404
                                          waters of the United States, requires an                to be both a limit on new mining and                  authorization for surface coal mining
                                          authorization under Section 404 of the                  a requirement for an overall increase in              activities that have also been authorized
                                          Clean Water Act unless the activity is                  aquatic resource functions for this NWP.              by OSM or states with approved
                                          specifically exempt.                                    We believe it is appropriate to authorize             programs under Title IV or Title V of
                                             Several commenters agreed that the                   a limited amount of coal mining in new                SMCRA. The Corps believes that the
                                          Corps should issue an NWP to authorize                  areas, as long as the remining and                    analyses and environmental protection
                                          remining activities. They stated that                   reclamation activities are conducted. In              standards required by SMCRA in
                                          until recently the Corps has not                        addition, the adverse effects of any new              conjunction with the pre-construction
                                          recognized the environmental benefits                   mining will be reviewed through the                   notification review further ensure that
                                          of remining and basically ignored                       pre-construction notification process,                the NWP activities result in minimal
                                          remining incentives developed by                        and the permittee cannot begin work                   individual and cumulative adverse
                                          Congress and other Federal agencies                     until written verification is received                impacts on the aquatic environment. In
                                          such as OSM and USEPA. However,                         from the district engineer, after                     fact, this NWP requires a net
                                          these commenters believe that the                       determining that the remining activity,               environmental benefit in the form of
                                          requirement that any newly mined land                   plus any new mining, will result in                   increased aquatic resource functions,
                                          not exceed 40 percent of previously                     minimal adverse effects on the aquatic                which will be identified through
                                          mined land plus any unmined land                        environment.                                          functional assessment methods.
                                          necessary for reclamation is                            Proposed Limits                                       Through the pre-construction
                                          inappropriate. They state that the ratio                                                                      notification process, district engineers
                                                                                                     One commenter suggested that while                 can also impose special conditions on a
                                          should be left up to the SMCRA agency
                                                                                                  some impact limits may be appropriate,                case-by-case basis to ensure that the
                                          on a case-by-case basis and that a rigid
                                                                                                  the limit should not be based on                      adverse effects on the aquatic
                                          40 percent ratio may not allow enough                   drainage area, because such an approach
                                          material to be generated to reclaim the                                                                       environment are minimal. Also, if the
                                                                                                  fails to recognize that small impacts that            district engineer determines through
                                          previously mined land. One commenter                    occur in the lower reaches of a
                                          stated that the Corps should reconsider                                                                       this case-by-case review that the activity
                                                                                                  watershed may result in more than                     has the potential to result in more than
                                          the proposed limitations since an                       minimal adverse effects on the aquatic
                                          overall improvement in aquatic                                                                                minimal adverse effects to the aquatic
                                                                                                  environment. One commenter stated                     environment, he or she can exercise
                                          resources is guaranteed and, as                         they supported the concept of this NWP
                                          proposed, the ratio threshold only                                                                            discretionary authority to require an
                                                                                                  but believe it should have the same                   individual permit.
                                          serves to limit the reclamation of                      restrictions as NWP 21. Several
                                          abandoned mine lands. One commenter                     commenters recommended that if the                    Functional Analysis
                                          recommended that the ratio limitation                   Corps does issue this NWP, it should                    A couple of commenters stated that
                                          be removed and that the Corps rely                      include limitations on the linear feet of             the Corps should not require a
                                          solely on the demonstration that the                    stream that can be filled. One                        functional analysis of the pre-mining
                                          overall project, including the                          commenter suggested a limit of 1⁄2-acre               aquatic conditions. They state that in
                                          reclamation activity and any new                        per use (which is the same as that                    these cases, water quality is poor and
                                          mining, will result in a net increase in                proposed for NWP 50 and other NWPs),                  can only be improved by completion of
                                          aquatic functions. One commenter                        and stated that without such a limit this             the authorized activities. Furthermore,
                                          stated that the Corps should reconsider                 NWP would allow impacts that far                      many of the sites are located on waters
                                          basing permit eligibility on uplands area               exceed those allowed under other                      that are listed on a state’s 303(d)
                                          (acreage), which is outside the                         NWPs. One commenter recommended                       impaired waters lists. A couple of
                                          jurisdiction of the Corps, and instead                  imposing a 300 linear foot limit for                  commenters stated that the Corps’
                                          focus on the improvement that such                      losses of stream bed. Several                         requirement for a quantified prediction
                                          activities would have on the aquatic                    commenters recommended limiting this                  of the environmental benefits that will
                                          resources within the project area, which                NWP to activities that result in the loss             result is unnecessary because EPA data
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                                          is within Corps jurisdiction. Another                   of less than 300 linear feet of streams,              shows that remining operations will
                                          commenter said that this NWP should                     to be consistent with other NWPs.                     result in a net increase in aquatic
                                          not authorize coal mining in any new                       We did not propose impact limits                   resource functions. One commenter
                                          areas, because of the potential for those               based on drainage area. We also do not                stated that, as the Corps has the data to
                                          activities to cause more than minimal                   believe that specific acreage or linear               show that reclamation projects in


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                              11149

                                          formerly mined areas have a beneficial                  404 analyses. We work with the other                  are fully mitigated, the Corps will not
                                          environment effect, every permittee                     agencies to avoid potential duplication               require additional compensation.
                                          should not need to prove this again, in                 of effort, and currently uses appropriate
                                                                                                                                                        Pre-Construction Notification
                                          a duplication of the SMCRA                              work and studies done by or for others
                                                                                                                                                        Requirement
                                          requirements. One commenter stated                      (i.e., ESA or SHPO surveys/findings) in
                                          that the Corps should not specify that a                our analyses of proposed projects.                       One commenter requested the pre-
                                          net overall improvement to the site’s                                                                         construction notification requirement be
                                                                                                  Mitigation                                            removed. One commenter expressed
                                          aquatic functions is required, but should
                                          focus on whether the project will have                     A couple of commenters stated that                 approval of the requirement that the
                                          minimal impacts to aquatic resources in                 the Corps should not require additional               applicant receive written authorization
                                          the project area.                                       mitigation beyond what is already                     from the district engineer prior to
                                             We agree that remining projects are                  required of the applicant pursuant to the             commencing the activity.
                                          generally beneficial, which is one of the               SMCRA permit, since the permitted                        We believe that the pre-construction
                                          reasons for proposing to issue this new                 activities will lead to significant water             notification requirement helps ensure
                                          NWP. However, we must track impacts                     quality improvements both at the site                 that no activity authorized by this
                                          and mitigation and show both on an                      and in the watershed. A number of                     permit will result in greater than
                                          individual and a cumulative basis that                  commenters asserted that the Corps has                minimal adverse impacts, either
                                          each project has a minimal impact on                    not demonstrated that compensatory                    individually or cumulatively, on the
                                          the aquatic environment. This can only                  mitigation offsets the adverse impacts of             aquatic environment, because it requires
                                          be done by the applicant submitting                     this NWP. Several commenters also                     a specific case-by-case review of each
                                          information on pre-mining conditions as                 stated that mitigation must be based on               project. If the district engineer
                                          well as what they anticipate the post                   an assessment of stream functions, for                determines through this case-by-case
                                          mining conditions will be. This permit                  which the Corps has no approved                       review that the activity has the potential
                                          requires that the reclamation plan result               methods. One commenter recommended                    to result in more than minimal adverse
                                          in a ‘‘net increase in aquatic resource                 that mitigation should result in at least             effects to the aquatic environment, he or
                                          functions’’. Studies typically show that                a 1:1 replacement of acres lost in order              she can exercise discretionary authority
                                          remining operations do improve areas                    to achieve no net loss of waters of the               to require an individual permit.
                                          that were degraded by past mining.                      United States from this NWP. Two
                                                                                                                                                        Minimal Adverse Effects
                                          However, landscape characteristics                      commenters stated that the CWA does
                                          vary, as do mining and reclamation                      not allow the Corps to issue general                     A number of commenters stated that
                                          practices. Furthermore, as an incentive,                permits based on the use of                           this NWP would result in more than
                                          this permit also authorizes a limited                   compensatory mitigation to reduce the                 minimal adverse environmental effects,
                                          amount of new mining in previously                      environmental impacts to minimal.                     particularly on a cumulative basis, and
                                          unmined areas adjoining the remined                        As a result of the pre-construction                would result in significant degradation
                                          area. Therefore, improvements to                        notification process the Corps will                   of streams. Therefore, the commenters
                                          aquatic resource functions must be                      review each project proposed for                      believe NWPs should not be used to
                                          demonstrated for any project authorized                 authorization by this NWP on a case-by-               authorize these activities, and these
                                          under this NWP. To do this, the                         case basis. Additional mitigation may                 activities should require individual
                                          permittee must submit functional                        not be required for a project. However,               permits. Several commenters cited the
                                          assessments showing that the project as                 this will be determined through the                   2002 programmatic Environmental
                                          a whole, including remining,                            district engineer’s minimal impact                    Impact Statement on surface coal
                                          reclamation and any new mining, will                    determination. As stated in our                       mining, which documented impacts to
                                          result in improved functions, such as                   regulations, we can rely on mitigation in             waters, particularly in Appalachia. A
                                          water quality, sediment transport or                    making a minimal adverse                              few commenters cited studies
                                          retention, and habitat, as appropriate for              environmental effects determination                   conducted by EPA and other research
                                          the specific type of aquatic habitat (e.g.,             (see 33 CFR 330.1(e)(3)).                             on the ecological impacts of valley fill
                                          stream or wetland). The functional                         The Corps will review the impacts                  on streams and on fish populations.
                                          assessments can be based on                             from the proposed final design using a                   We believe that a careful case-specific
                                          information developed as part of the                    functional assessment method. If the                  minimal impact determination is
                                          SMCRA process, and should clearly                       functions gained by the proposed                      necessary for this NWP. In addition, as
                                          identify and, if possible, quantify, the                project exceed the functions lost as a                with NWP 21, this NWP requires a
                                          functional lift that will be achieved for               result of proposed activities then                    written verification before the project
                                          each function. We realize the often poor                additional mitigation may not be                      proponent may proceed with the work.
                                          quality of the environment where these                  required. We are currently developing                 The applicant must clearly demonstrate
                                          projects are proposed and appreciate the                new stream functional assessment                      that the reclamation plan will result in
                                          benefits to the aquatic environment that                protocols for identifying the functions               a net increase in aquatic resource
                                          can be achieved by completing these                     lost through impacts and the functions                functions, and that any adverse impacts
                                          projects.                                               gained or enhanced through mitigation.                to the aquatic environment are minimal.
                                             We understand coal mining is covered                    General condition 20 establishes the               If the district engineer determines
                                          by many environmental regulations,                      framework for determining appropriate                 through this case-by-case review that
                                          however the Corps has determined that                   mitigation and achieving no net loss of               the activity has the potential to result in
                                          the current SMCRA process does not                      aquatic resources. The Corps takes into               more than minimal adverse effects to
                                          adequately address impacts to the                       account the fact that, in certain areas               the aquatic environment, he or she can
                                          aquatic environment as required under                   and circumstances, any compensatory                   exercise discretionary authority to
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                                          Section 404 of the Clean Water Act.                     mitigation required by the Corps may be               require an individual permit.
                                          Accordingly, this NWP does not                          fully encompassed or exceeded by                         Since the functions of aquatic
                                          duplicate the SMCRA permit process,                     requirements of others (e.g., reclamation             resources vary widely across the
                                          but we rely on that process for                         requirements under SMCRA). As long as                 country, assessment of cumulative
                                          information that is useful in our Section               the impacts to the aquatic environment                impacts is conducted by Corps districts


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                                          11150                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          on a watershed basis, based on regional                 Scope of Analysis                                     404 of the Clean Water Act. The
                                          and local conditions and procedures. If                    One commenter stated that only poor                decision document discusses the
                                          the use of this NWP results in more than                and isolated communities are being                    anticipated impacts on the Corps’ public
                                          minimal cumulative adverse effects on                   affected by surface coal mining. Another              interest factors from a national
                                          the aquatic environment in a watershed,                 commenter noted that coal slurry                      perspective. NWPs are issued at the
                                          the division engineer may modify,                       impoundments can fail and release                     conclusion of this process. The
                                          suspend, or revoke this NWP in that                     mining wastes into downstream waters.                 individual projects that are proposed for
                                          watershed. We believe the pre-                          Two commenters stated that loss of                    authorization under an NWP are not
                                          construction notification requirements                                                                        given a permit but a verification or
                                                                                                  forest and movement of dirt associated
                                          for this NWP ensures that authorized                                                                          authorization that the project complies
                                                                                                  with surface coal mining has
                                          activities result in no more than                                                                             with an NWP. There are no
                                                                                                  detrimental environmental effects.
                                          minimal adverse impacts to the aquatic                                                                        requirements for public comments on
                                                                                                     Impacts to poor and isolated
                                          environment because each project is                                                                           specific projects authorized under
                                                                                                  communities are outside of the Corps’
                                          reviewed on a case-by-case basis and the                                                                      NWPs. However, as noted above, one of
                                                                                                  scope of analysis pursuant to the
                                          district engineer either makes a minimal                                                                      the bases for our determination that the
                                                                                                  National Environmental Policy Act. The
                                          impacts determination on the project or                                                                       activities authorized by this NWP will
                                                                                                  Corps evaluation of coal mining
                                          asserts discretionary authority and                                                                           have minimal impacts is that they must
                                                                                                  activities is focused on impacts to
                                          requires an individual permit.                                                                                also be authorized by a permit issued
                                                                                                  aquatic resources. In accordance with
                                          Additionally, as noted above, division                                                                        under SMCRA, which requires many of
                                                                                                  E.O. 12898, the Corps has determined
                                          engineers can add regional conditions to                                                                      the same types of analyses that we
                                                                                                  that the issuance of the NWPs,
                                          any NWP to further restrict the use of                                                                        would require under Section 404. In
                                                                                                  including NWP 49, will not cause                      addition, each SMCRA permit action
                                          the NWP to ensure that the NWP                          disproportionate impacts to minority or
                                          authorizes only activities with no more                                                                       includes a public participation process.
                                                                                                  low-income communities (see                           Therefore, as a practical matter, the
                                          than minimal adverse effects on the                     discussion of E.O. 12898 below). The
                                          aquatic environment in a particular                                                                           public will have the opportunity to
                                                                                                  design and safety of coal slurry                      comment on each individual project
                                          watershed or other geographic region.                   impoundments are more appropriately
                                          Each district tracks losses of waters of                                                                      authorized under this NWP.
                                                                                                  addressed through the SMCRA process,
                                          the United States authorized by                         which provides design and safety                      General
                                          Department of the Army permits,                         requirements for these facilities. Mining               One commenter stated that there is no
                                          including verified NWPs, as well as                     in general is permitted under a separate              rational basis for the creation of this
                                          compensatory mitigation achieved                        Federal law, the Surface Mining Control               proposed NWP since under SMCRA, the
                                          through aquatic resource restoration,                   and Reclamation Act. Impacts                          term ‘‘surface coal mining operations’’
                                          creation, and enhancement.                              associated with surface coal mining and               includes both Title V permits
                                          Impoundments                                            reclamation operations are                            authorizing remining of previously-
                                                                                                  appropriately addressed by the Office of              mined lands as well as mining of lands
                                             Several commenters stated that coal                  Surface Mining or the applicable state                that have not been previously disturbed.
                                          slurry impoundments should not be                       agency. Where relevant to potential                   The commenter stated that the NWP
                                          authorized by this NWP. The                             impacts on aquatic resources, the Corps               may not conform to the Section
                                          commenters also stated that NWPs 21,                    considers documentation prepared                      404(b)(1) Guidelines, which would
                                          49 and 50 cannot be used for both valley                pursuant to SMCRA in its review of pre-               require greater scrutiny for remining
                                          fills and coal slurry impoundments, as                  construction notifications.                           activities due to the availability of
                                          they are not activities that are ‘‘similar                                                                    existing benches, roads and fills that
                                          in nature’’, as required for authorization              Public Participation
                                                                                                                                                        could render new fill in waters of the
                                          under an NWP.                                              Several commenters stated that this                United States unnecessary. The
                                             The NWPs are issued in accordance                    NWP does not provide the public with                  commenter also cited Section 301(p) of
                                          with Section 404(e) of the CWA. NWPs                    an opportunity to comment on the                      the Clean Water Act, which allows
                                          authorize categories of activities that are             specific conditions of the NWP                        exceptions to effluent limits for surface
                                          similar in nature. The ‘‘similar in                     authorizations that affect their                      coal remining operations. The
                                          nature’’ requirement does not mean that                 communities and watersheds.                           commenter asserted that Section 404
                                          activities authorized by an NWP must                       Section 404(e) of the Clean Water Act              does not have a similar exception for
                                          be identical to each other. We believe                  provides the statutory authority for the              remining, and that this NWP cannot
                                          the ‘‘categories of activities that are                 issuance of general permits on a                      replace the requirements for avoidance,
                                          similar in nature’’ requirement of                      nationwide basis for any category of                  minimization and mitigation with the
                                          Section 404(e) is to be interpreted                     activities that the Corps determines will             proposed amorphous standard of a ‘‘net
                                          broadly, for practical implementation of                have minimal adverse impacts on the                   increase in aquatic resource function’’.
                                          the NWP program. NWPs as well as                        aquatic environment, both individually                The commenter also stated that it was
                                          other general permits are intended to                   and cumulatively. The Corps establishes               unclear from the text of this NWP how
                                          reduce administrative burdens on the                    NWPs in accordance with section                       the Corps intends the remining
                                          Corps and the regulated public. We                      404(e), by publishing and requesting                  authorization to work.
                                          believe that slurry impoundments are                    comments on the proposed permits. The                   New coal mining activities eligible for
                                          support features associated with coal                   general public has the opportunity to                 authorization under this NWP may be
                                          mining and thus can be authorized by                    comment on NWPs at this time. In order                authorized by NWP 21, but in contrast
                                          this NWP. However, the impacts                          to address the requirements of the                    to NWP 21 this NWP also authorizes
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                                          associated with any such                                National Environmental Policy Act, the                abandoned mined land reclamation
                                          impoundments must be addressed in                       Corps prepares an environmental                       activities under Title IV of SMRCA that
                                          the required demonstration that the                     assessment for each NWP, as well as a                 involve coal extraction. We recognize
                                          project will result in a net increase in                404(b)(1) Guidelines analysis if the                  the benefits of restoration of mine sites
                                          aquatic resource functions.                             NWP authorizes activities under Section               that are causing physical and or


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11151

                                          chemical impacts to waters of the                       applied to small streams could result in              preparation and processing activities
                                          United States and the fact that due to                  the fill of long segments of streams                  outside of the mine site. The commenter
                                          changes in technology, additional coal                  without proper mitigation. Two                        noted that preparation activities were
                                          may be excavated as part of the                         commenters stated that if NWP 50 is                   not part of a surface coal mining project.
                                          reclamation process. These sites may                    issued, it must include stringent limits                 The Corps envisions that activities
                                          also be combined with adjacent                          on the amount of stream that can be                   that are not part of the underground
                                          unmined areas to develop a project that                 filled. One commenter stated that the                 mine site, which are outside the SMCRA
                                          is economically viable. The net result of               NWP should be limited to activities that              permit area, can be authorized by NWP
                                          these combined remining/new mining                      fill less than 300 feet of streams and                21 if they met the conditions for its use.
                                          projects is that sources of pollution to                should not be used in watershed where                 We note that many processing plants
                                          downstream waters, including acid                       the cumulative amount of filled streams               serve both underground and surface
                                          mine drainage and sediment, will be                     is already likely causing more than                   mine sites, some at considerable
                                          eliminated or substantially reduced                     minimal harm.                                         distance, and that construction of such
                                          when the site is reclaimed. We believe                     In consideration of the comments                   plants does not involve underground
                                          this NWP will encourage applicants to                   received, we have decided not to                      disturbances in the way that
                                          consider reclamation of adjacent lands                  include the 1⁄2-acre limit. This permit               underground mining does. Thus we
                                          in their overall project plans. As noted                replaces the 2002 version of NWP 21 for               believe it appropriate to continue
                                          previously, the applicant needs to show                 underground coal mining activities. The               allowing NWP 21 to authorize such
                                          through a functional assessment method                  new NWP 21, which continues                           activities. We believe the changes
                                          that the project will result in a net                   authorization for surface coal mining                 discussed above to NWP 50 address the
                                          increase in aquatic resource functions.                 activities, does not include an acreage               concern that, under the proposed
                                             As noted previously, Section 404(e) of               limit. Instead, NWP 21 relies on the                  version of the permit, many
                                          the Clean Water Act provides the                        SMCRA permitting process in                           underground coal mining activities
                                          statutory authority for the issuance of                 combination with an enhanced pre-                     would have required an individual
                                          general permits on a nationwide basis                   construction notification requirement                 permit. There is no longer an acreage
                                          for any category of activities. As part of              which requires that permittees wait for               limit on the use of this permit, although
                                          the establishment of the NWPs a                         written verification from the Corps                   it can only be used to authorize
                                          decision document is prepared for each                  before beginning their projects, even if              activities which the district engineer has
                                          NWP along with a 404(b)(1) Guidelines                   the pre-construction notification review              determined will have no more than
                                          analysis. Although analysis of offsite                  takes more than 45 days. After further                minimal adverse effects, both
                                          alternatives is not required in                         consideration, we have determined that                individually and cumulatively, and only
                                          conjunction with general permits, each                  the same logic that applies to NWP 21                 after the district engineer has notified
                                          proposed project is evaluated for onsite                also applies to NWP 50, and so have                   the operator in writing that use of this
                                          avoidance and minimization, in                          adopted similar requirements with                     NWP is authorized.
                                          accordance with general condition 20,                   respect to limits and verification. Thus,
                                                                                                                                                        Minimal Adverse Impacts
                                          Mitigation. This includes consideration                 the 1⁄2 acre limit has been dropped, and
                                          of the availability of existing benches,                permittees must wait for written                         Many commenters were opposed to
                                          roads, and fills that could be used                     verification from the Corps before                    issuance of this NWP. They stated that
                                          instead of placing new fill in waters of                proceeding.                                           general permit procedures were
                                          the United States.                                                                                            inappropriate for such large scale
                                                                                                  Pre-Construction Notification                         activities and that these types of
                                             Proposed NWP E is issued as NWP 49,
                                          with the addition of authorization for                     Four commenters recommended that                   activities seemed to demand a thorough
                                          projects authorized under Title IV of                   applicants should be required to receive              review, public notice, and an
                                          SMCRA that include coal extraction.                     written authorization prior to                        alternatives and minimization analysis.
                                             NWP 50. Underground Coal Mining                      commencing the activity. As noted                     One commenter stated that the Clean
                                          Activities. This is a new NWP. Pre-                     above, the Corps has now adopted this                 Water Act does not allow the Corps to
                                          construction notification is required for               requirement for this permit and dropped               issue general permits on the basis that
                                          all activities proposed to be authorized                the 1⁄2 acre threshold. This requirement              compensatory mitigation will reduce net
                                          by this permit. As with NWP 21,                         is necessary to give the district engineer            adverse effects to a minimal level. Two
                                          permittees must receive written                         adequate time to determine whether or                 comments stated that NWPs can only be
                                          authorization from the Corps before                     not to assert discretionary authority and             used for activities that cause minimal
                                          proceeding. Additionally, the projects                  require an individual permit if the                   environmental effects both individually
                                          must be authorized by OSM or by states                  impacts of the proposed activity are                  and cumulatively, and if impacts are
                                          with approved programs under Title V                    more than minimal, either individually                more than minimal, the project requires
                                          of SMCRA.                                               or cumulatively.                                      an individual permit with site-specific
                                                                                                                                                        analysis and public comment. Several
                                          Proposed Limits                                         Use of NWP 21 for Underground Mining                  commenters stated that coal mining
                                            Numerous comments were received                         Concerns were expressed by several                  results in significant environmental
                                          regarding the proposed 1⁄2 acre limit on                commenters regarding the continued                    impacts and degradation of streams in
                                          this NWP. Many commenters stated that                   use of NWP 21 to authorize                            Appalachia.
                                          the 1⁄2 acre limit is too small to                      underground mining activities. These                     The Corps believes that a careful case-
                                          accommodate underground coal mining                     commenters requested clarification                    specific determination of impacts is
                                          activities and attendant features and it                regarding this issue. One commenter                   necessary for this NWP. The pre-
                                          should be deleted. One commenter                        noted that if NWP 21 could not be used                construction notification process, along
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                                          recommended that any limits should be                   for underground mining then most                      with the requirement for written
                                          imposed regionally rather than                          underground mine discharges would                     verification from the Corps, will allow
                                          nationally.                                             require an individual permit. One                     the district engineer to determine if the
                                            One commenter stated that the 1⁄2 acre                commenter expressed concerns                          impacts of the proposed activity are no
                                          limit was too high and the 1⁄2 acre limit               regarding the use of NWP 21 for coal                  more than minimal, individually and


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                                          11152                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          cumulatively, or whether an individual                  that alternatives that do not result in               and must be reviewed comprehensively
                                          permit is required. Furthermore, we                     impacts to waters of the United States                and not piecemeal.
                                          believe that the Corps can rely on                      are available.                                          The Corps evaluation of coal mining
                                          mitigation in making a minimal adverse                     As noted previously, Section 404(e) of             activities is focused on impacts to
                                          environmental effects determination.                    the Clean Water Act provides the                      aquatic resources. Other impacts of coal
                                            We believe that an assessment of                      statutory authority for the issuance of               mining are addressed under a separate
                                          individual and cumulative impacts                       general permits on a nationwide basis                 Federal law, SMCRA. Such impacts,
                                          cannot be made on a national level,                     for any category of activities. As part of            including those associated with
                                          because the functions and values of                     the establishment of the NWPs a                       reclamation operations, are
                                          aquatic resources vary widely across the                decision document is prepared for each                appropriately addressed by OSM or the
                                          country. Assessment of cumulative                       NWP along with a 404(b)(1) Guidelines                 applicable state agency, if program
                                          impacts is more appropriately                           analysis. Although analysis of offsite                delegation has occurred. To the extent
                                          conducted by Corps districts on a                       alternatives is not required in                       that reclamation activities affect waters
                                          watershed basis, based on regional and                  conjunction with general permits, each                of the United States, these will be
                                          local conditions and procedures. We                     proposed project is evaluated for onsite              addressed in the Corps review and
                                          believe our process for this NWP                        avoidance and minimization, in                        appropriate mitigation required.
                                          ensures that activities authorized by the               accordance with GC 20. This includes                  Similar in Nature
                                          NWP result in no more than minimal                      consideration of alternatives that do not
                                          adverse impacts to the aquatic                                                                                  Several commenters stated that slurry
                                                                                                  result in impacts to waters of the United
                                          environment because each project is                                                                           impoundments should not be allowed
                                                                                                  States.
                                          reviewed on a case-by-case basis and the                                                                      under NWPs, and that NWPs can only
                                                                                                     One commenter stated that it was a                 be issued for activities that are similar
                                          district engineer either makes a minimal                duplication of effort to have a review of
                                          impacts determination on the project or                                                                       in nature. The Corps has determined
                                                                                                  the applicants’ reclamation plan.                     that slurry impoundments are related to
                                          asserts discretionary authority and
                                                                                                     The Corps understands coal mining is               underground mining activities. The
                                          requires an individual permit.
                                                                                                  covered by many environmental                         NWPs are issued in accordance with
                                          Additionally, as noted above, division
                                          engineers can add regional conditions to                regulations, however the Corps has                    Section 404(e) of the CWA. NWPs
                                          any NWP to further restrict the use of                  determined that SMCRA does not                        authorize categories of activities that are
                                          the NWP to ensure that the NWP                          currently adequately address impacts to               similar in nature. The ‘‘similar in
                                          authorizes only activities with no more                 the aquatic environment as required                   nature’’ requirement does not mean that
                                          than minimal adverse effects on the                     under Section 404 of the CWA.                         activities authorized by an NWP must
                                          aquatic environment in a particular                     Therefore this NWP does not duplicate                 be identical to each other. We believe
                                          watershed or other geographic region.                   the SMCRA permit process but does rely                the ‘‘categories of activities that are
                                          Each district tracks losses of waters of                on it for information used in the                     similar in nature’’ requirement of
                                          the United States authorized by                         analysis. The Corps continues to work                 Section 404(e) is to be interpreted
                                          Department of the Army permits,                         with the other agencies to avoid                      broadly, for practical implementation of
                                          including verified NWPs, as well as                     potential duplication of efforts. The                 the NWP program.
                                          compensatory mitigation achieved                        reclamation plan can be used to
                                                                                                  consider proposed mitigation measures                 Mitigation
                                          through aquatic resource restoration,
                                          creation, and enhancement.                              for the projects being proposed for                      Several commenters stated that the
                                          Furthermore, as with NWP 21, all                        authorization by NWP 50. This                         mitigation done for coal mining impacts
                                          activities authorized by this permit                    information will be used by the Corps                 is scientifically indefensible and, absent
                                          require authorization under SMCRA,                      in making a determination as to whether               such mitigation, the projects authorized
                                          and the SMCRA analysis,                                 the impacts are no more than minimal.                 under NWP 50 have more than minimal
                                          documentation and process                                                                                     adverse effect and are therefore not
                                                                                                  Scope of Analysis
                                          requirements largely substitute for the                                                                       eligible for an NWP. They stated that
                                          analysis, documentation and process                       One commenter stated that there                     current mitigation projects have so far
                                          requirements of an individual permit.                   should be a way to figure out how to                  been unsuccessful and referenced a
                                          This is not to say that discharges related              extract the coal and still protect the                court case in the Southern District of
                                          to coal mining and their impacts on                     environment. Another commenter noted                  West Virginia (Ohio Valley
                                          aquatic resources do not require                        that the amount of earth moving by                    Environmental Coalition v. Bulen),
                                          independent review and authorization                    mining activities is sufficient by itself to          where they noted that a Corps official
                                          by the Corps with respect to the                        demonstrate that environmental impacts                stated that he did not know of a single
                                          requirements of the CWA, but the Corps                  of mining are significant. One                        instance of successful headwater stream
                                          believes that the analytical and process                commenter stated that the subsidence                  creation. Also, the commenters stated
                                          requirements can be streamlined by                      that may occur as a result of                         that the Corps did not include any
                                          relying on the SMCRA process to the                     underground mining should be                          specific guidelines for how to assess
                                          extent appropriate. Where the district                  considered in determining the acreage                 stream function in order to determine
                                          engineer determines that these process                  impacts to waters for this NWP. One                   the adequacy of compensatory
                                          requirements are not adequate for a                     commenter noted that coal mining                      mitigation. They also stated that the
                                          particular project, he or she will require              waste contains chemical components                    Corps has not shown that mitigation
                                          an individual permit.                                   that are toxic to aquatic life and that               will offset the impacts authorized under
                                                                                                  waste impoundments may fail. The                      NWP 50 or that off-site enhancement of
                                          404(b)(1) Guidelines                                    commenter believed that this justifies an             streams would fully compensate for
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                                            Several commenters stated that any                    independent review. One commenter                     functions of streams that are destroyed.
                                          proposed disturbance to waters to                       stated that the ‘‘facing up’’ practice                Other commenters stated that the Corps
                                          support coal processing or underground                  cannot be carved out from the full range              mistakenly allows the mitigation
                                          coal mining activities should be subject                of environmental impacts associated                   requirements of SMCRA and state water
                                          to the Section 404(b)(1) Guidelines, and                with underground mining operations                    quality laws to satisfy the independent


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                            11153

                                          requirements of Section 404 of the Clean                by requirements of others. As long as                 downstream movement of substrate and
                                          Water Act. They stated that allowing a                  the impacts to the aquatic environment                wood. This general condition would
                                          permittee to claim a compensatory                       are fully mitigated, the Corps will not               require stream crossings, such as bridges
                                          mitigation or reclamation activity                      require additional compensation.                      and culverts, to allow downstream
                                          already required under SMCRA as                           Proposed NWP F is issued as NWP 50,                 movement of substrate and wood during
                                          compensatory mitigation under the                       with the modifications discussed above.               100-year flow events, as well as
                                          Clean Water Act is ‘‘double-counting’’                  General Conditions                                    movement of wood from upstream
                                          and improperly blurs the requirements                                                                         segments to downstream segments.
                                          of sequencing (i.e., avoidance,                            One commenter supported the
                                                                                                                                                        Another commenter suggested adding a
                                          minimization, mitigation) imposed                       proposed change to the ordering of the
                                                                                                                                                        new general condition to address
                                          under the 404(b)(1) guidelines. Other                   general conditions. One commenter said
                                                                                                                                                        adverse impacts from invasive species.
                                          commenters recommended that a                           that the proposed changes to general
                                          mitigation ratio of at least 1:1 should be              conditions will reduce environmental                     We do not agree that it is necessary
                                          required in order to achieve no net loss,               protection. A commenter stated that                   to add a new general condition, as there
                                          and that mitigation also should be                      temporary impacts should be addressed                 are other general conditions which
                                          required for potential, as well as actual,              through a new general condition,                      already include adequate provisions to
                                          impacts. Several commenters stated that                 instead of requiring separate                         address this concern. General condition
                                          final reclamation of wetland habitat will               authorization under NWP 33.                           2, Aquatic Life Movements, states that
                                          most likely occur in the absence of                        The changes to the general conditions              no activity may substantially disrupt the
                                          required compensatory mitigation.                       will help improve environmental                       necessary life-cycle movements of those
                                             In order to ensure that an activity                  protection, by providing clearer and                  species that normally migrate through
                                          results in no more than minimal adverse                 more enforceable requirements for                     the area. General condition 9,
                                          effects on the aquatic environment, the                 permittees. Department of the Army                    Management of Water Flows, states that,
                                          Corps will add permit conditions that                   permits are required for temporary                    to the maximum extent practicable, the
                                          require compensatory mitigation that                    structures, work, or discharges into                  activity must not restrict or impede the
                                          meets specified success criteria. The                   waters of the United States, including                passage of normal or high flows, unless
                                          Corps will generally require the                        navigable waters, unless those activities             the primary purpose is to impound
                                          permittee to monitor the mitigation site                are exempt from permit requirements.                  water. In general, blockages caused by
                                          for five years and, if the mitigation site              Therefore, those regulated activities                 restricted movement of wood or
                                          does not meet the success criteria at that              cannot be authorized through a general                substrate would violate these conditions
                                          time, remediation or additional                         condition. In some cases, temporary                   and must be prevented. Further, the
                                          mitigation will be required. This                       structures, work, or discharges
                                                                                                                                                        ability for division and district
                                          ensures that the authorized activity will               associated with another permitted
                                                                                                                                                        engineers to exercise discretionary
                                          not result in a net loss in aquatic                     activity are included in the NWP
                                                                                                                                                        authority or regionally condition
                                          functions. The Corps has increased its                  authorization for that activity; in other
                                                                                                                                                        proposed activities under an NWP are
                                          compliance efforts to ensure that                       cases temporary structures, work or
                                                                                                                                                        sufficiently to address any site-specific
                                          projects authorized by DA permits are                   discharges must be authorized
                                                                                                  separately under NWP 33.                              concerns related to blocked movement
                                          constructed as authorized and that
                                                                                                     One commenter said that the                        of wood and ensure that authorized
                                          mitigation is successful.
                                             We are currently developing new                      proposed ‘‘Note’’ for the NWP general                 activities result in minimal adverse
                                          stream functional assessment protocols                  conditions should contain language                    effects on the aquatic environment. The
                                          to identify and quantify the functions                  requiring permittees to comply with                   Corps does not have the regulatory
                                          lost through authorized impacts and the                 regional conditions and state water                   authority to prohibit the introduction of
                                          functions gained or enhanced through                    quality standards. This commenter also                invasive species. Invasive species may
                                          mitigation. The Corps coordinates with                  requested that the word ‘‘should’’ be                 become established in areas through
                                          the SMCRA and state resource agencies                   replaced with ‘‘must.’’                               many mechanisms, not just disturbances
                                          to achieve appropriate aquatic                             The proposed ‘‘Note’’ clearly states               caused by construction activities
                                          restoration on mine sites, which can                    that permittees are required to comply                authorized by NWPs and other Corps
                                          reduce or eliminate the amount of off-                  with regional conditions and that                     permits. Such a condition would also be
                                          site compensatory mitigation needed.                    permittees should check on the status of              unenforceable and therefore such a
                                          The Corps does not consider this                        water quality certifications and Coastal              general condition would be contrary to
                                          ‘‘double-counting’’, because the areas                  Zone Management Act consistency                       33 CFR 325.4(a).
                                          restored are only counted once in the                   determinations before using an NWP.                      A number of commenters objected to
                                          replacement of aquatic resource                         We cannot require prospective                         the removal of the phrase ‘‘including
                                          functions. As long as the functions lost                permittees to contact district offices to             structures or work in navigable waters
                                          as a result of the permitted activity are               obtain this information (hence we have                of the United States or discharges of
                                          mitigated through the onsite restoration                not replaced ‘‘should’’ with ‘‘must’’) but            dredged or fill material’’ from text of
                                          or enhancement, it does not matter if the               we have clarified that individual                     certain general conditions. One
                                          restoration also meets other goals                      certification is required in cases where              commenter asked if removal of that
                                          unrelated to the Section 404 impacts.                   prior certification for the NWP has not
                                                                                                                                                        phrase from those general conditions
                                          General condition 20 establishes the                    been received. Permittees may also be
                                                                                                                                                        would reduce protection of aquatic
                                          framework for achieving no net loss of                  able to obtain information on regional
                                                                                                                                                        resources.
                                          waters/wetlands, as well as the                         conditions and the status of water
                                          sequential review of mitigation                         quality certifications and Coastal Zone                  The removal of that language will not
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                                          approaches on-site. The Corps takes into                Management Act consistency                            affect protection of waters of the United
                                          account the fact that, in certain areas                 determinations through the Internet or                States. The stricken language was
                                          and circumstances, any Corps                            other sources.                                        considered redundant as it simply refers
                                          compensatory mitigation requirement                        One commenter recommended adding                   to the general types of activities
                                          may be fully encompassed or exceeded                    a new general condition to address the                regulated under sections 10 and 404.


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                                          11154                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          General Conditions                                      application, if known, or if documented               disruptions to aquatic life movement are
                                             GC 1. Navigation. We proposed to                     at the time of application.’’ to this                 measurable but not substantial, and may
                                          modify this general condition to require                general condition.                                    be acceptable during construction or
                                                                                                     Activities authorized by NWPs should               during natural seasonal events such as
                                          permittees to install any safety lights
                                                                                                  not substantially disrupt the necessary               floods, winter ice conditions, or during
                                          and signals prescribed by the U.S. Coast
                                                                                                  life cycle movement of aquatic species,               construction conducted during dry
                                          Guard. We also proposed to modify this
                                                                                                  and the absence of species-specific                   seasons. It is not practicable,
                                          general condition to notify permittees
                                                                                                  information does not mean measures                    appropriate, or necessary to conduct
                                          that they may be required to remove
                                                                                                  cannot be taken to prevent unnecessary                hydrologic analyses for each NWP
                                          structures or work that cause
                                                                                                  obstructions to those movements. Even                 activity that has the potential to disrupt
                                          unreasonable obstruction to navigation.
                                                                                                  if the necessary life cycle movements                 life cycle movements, based on the
                                             One commenter supported the
                                                                                                  are not known, inferences can be made                 projected development for a watershed.
                                          requirement concerning safety lights
                                                                                                  to help ensure that those movements                   Compliance with this general condition
                                          and signals. One commenter said that
                                                                                                  can continue. Those inferences can be                 is to be assessed on a case-by-case basis,
                                          the Federal government should bear the
                                                                                                  based on general considerations of the                through available information or general
                                          financial costs for the removal of
                                                                                                  mitigation measures necessary to ensure               knowledge of aquatic life movements.
                                          structures or work it authorized. One                   that adverse impacts to aquatic life
                                          commenter stated that the Federal                                                                             The current language in the general
                                                                                                  movements are minimized to the                        condition, especially the requirement to
                                          government itself could be a permittee                  maximum extent practicable. For
                                          and be required to remove the structure                                                                       install culverts to maintain low flow
                                                                                                  example, properly sized culverts that                 conditions, is sufficient to ensure that
                                          or work at the Federal government’s                     are installed to retain low flow
                                          expense. One commenter said that this                                                                         stream crossings do not substantially
                                                                                                  conditions will help ensure that life                 disrupt aquatic life movements. This
                                          general condition should also include                   cycle movements will continue.
                                          waters determined by states to be                                                                             general condition, as well as the
                                                                                                  Therefore, we are removing the phrase                 requirements of general condition 9,
                                          navigable waters.                                       ‘‘if known’’ from this general condition
                                             There may be cases where activities                                                                        Management of Water Flows, will help
                                                                                                  to allow district engineers to continue to            ensure that NWP activities result only in
                                          authorized by Department of the Army                    use their judgment, so that adverse
                                          permits interfere with navigation or an                                                                       minimal adverse effects to the
                                                                                                  effects to aquatic life movements are                 movement of aquatic life via streams.
                                          existing or future operation of the                     minimized, even if the necessary life
                                          United States and need to be removed.                                                                            The general condition is adopted,
                                                                                                  cycle movements are not known, but                    with the modification discussed above
                                          The cost of removal is the responsibility               can be generally inferred.
                                          of the permittee, even in cases where                                                                            GC 3. Spawning Areas. We proposed
                                                                                                     Two commenters requested
                                          the permittee is the Federal government.                                                                      to modify this general condition by
                                                                                                  clarification of the term ‘‘substantially’’
                                          If there is any question as to whether or                                                                     removing language describing the
                                                                                                  as used in this general condition. One
                                          not a particular activity or structure will             commenter said that this term results in              general types of activities authorized by
                                          interfere with navigation, the permittee                too high a threshold for the disruption               NWPs under sections 10 and 404.
                                          should check with the Coast Guard                       of aquatic life movement. One                            One commenter stated that not
                                          before beginning the activity. Adverse                  commenter stated that aquatic life                    enough protection is provided since
                                          effects to navigable waters identified by               movement should be reviewed using                     avoidance is only necessary to the
                                          states that are not navigable waters of                 hydraulic analyses performed for the                  maximum extent practicable. One
                                          the United States should be addressed                   range of flows expected after a basin is              commenter requested a definition of the
                                          by state regulatory programs. The Corps                 fully developed. Another commenter                    term ‘‘important spawning area.’’ One
                                          lacks the authority to enforce state laws               said that this general condition should               commenter said that this general
                                          and regulations for state navigable                     require stream crossings to be                        condition should not apply to NWPs 27
                                          waters.                                                 constructed with bottom elevations                    or 48 because shellfish seeding can
                                             The general condition is adopted as                  below the normal substrate grade to                   provide and/or increase availability of
                                          proposed.                                               avoid creating improper elevations or                 spawning habitat.
                                             GC 2. Aquatic Life Movements. We                     barriers that may substantially disrupt                  The removal of language describing
                                          proposed to modify this general                         aquatic life movements. This                          the general applicability of NWPs will
                                          condition by adding the phrase ‘‘if                     commenter also recommended                            not affect protection of waters of the
                                          known’’ before ‘‘necessary life cycle                   modifying this general condition to                   United States. This general condition
                                          movements’’ because those life cycle                    prohibit changes to stream morphology                 applies to all NWPs. The phrase ‘‘to the
                                          movements that are important are not                    that could substantially interfere with               maximum extent practicable’’ is
                                          always well understood for indigenous                   aquatic life movements.                               necessary since some NWP activities
                                          aquatic species. The intent of this                        In general, activities in waters of the            may be time-sensitive and it is not
                                          general condition is to ensure that the                 United States authorized by NWPs are                  possible to completely avoid activities
                                          necessary movements of aquatic species                  likely to result in some disruption of                in spawning areas. Since the NWPs
                                          are not substantially disrupted.                        necessary life cycle movements of                     authorize activities that have minimal
                                             Many commenters expressed                            aquatic species, since we are                         adverse effects on the aquatic
                                          opposition to the proposed modification                 authorizing discharges of dredged or fill             environment, some NWP activities may
                                          and recommended removing the phrase                     material into those waters or structures              be conducted in spawning areas.
                                          ‘‘if known.’’ They stated that the lack of              or work in navigable waters of the                    Identification of important spawning
                                          knowledge concerning aquatic life                       United States. The word ‘‘substantially’’             areas is more appropriately addressed
                                          movements should not be construed as                    supports the requirement that NWPs                    through either the regional conditioning
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                                          authorization to allow disruption of                    authorize only those activities that                  processes or through the assessment of
                                          aquatic life cycle movements. One                       result in minimal individual and                      site-specific characteristics during the
                                          commenter supported the proposed                        cumulative adverse effects on the                     review of pre-construction notifications.
                                          modification, and also recommended                      aquatic environment, while recognizing                   The general condition is adopted as
                                          adding ‘‘at the time of the permit                      that some disruption may occur. Some                  proposed.


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11155

                                            GC 4. Migratory Bird Breeding Areas.                  to amend this general condition to                    environment. However, the district
                                          We proposed to modify this general                      prohibit haying or grazing during                     engineer may determine that this
                                          condition to cover migratory birds                      nesting seasons for migratory birds,                  general condition does not apply in
                                          generally, not just migratory waterfowl.                since the Corps cannot enforce such a                 situations where a specific NWP activity
                                          We also proposed to remove language                     provision.                                            will have little or no adverse effect on
                                          describing the general types of activities                 The applicability of the Migratory                 areas of concentrated shellfish
                                          authorized by NWPs under sections 10                    Bird Treaty Act is addressed by                       populations. The reference to NWP D
                                          and 404.                                                Executive Order 13186,                                has been changed to NWP 48, to reflect
                                            One commenter said that the                           ‘‘Responsibilities of Federal Agencies to             the number assigned to that new NWP.
                                          proposed modification would further                     Protect Migratory Birds,’’ which was                     This general condition is adopted
                                          restrict the use of the NWPs in                         issued on January 10, 2001. This                      with the modification discussed above.
                                          wetlands. Another commenter asked                       Executive Order does not apply to                        GC 6. Suitable Material. We proposed
                                          how the change would affect non-                        Department of the Army permits.                       to modify this general condition by
                                          waterfowl migratory birds in cases                      Responsibility for complying with                     removing language describing the
                                          where their habitat requirements are                    requirements of the Migratory Bird                    general types of activities authorized by
                                          different than the habitat requirements                 Treaty Act lies with the permittee, but               NWPs under sections 10 and 404.
                                          of waterfowl. One commenter fully                       this responsibility is independent of the                One commenter suggested the general
                                          supported the inclusion of migratory                    Department of the Army permit. The                    condition contain a list of suitable
                                          birds but requested a national no-work                  provisions of the Migratory Bird Treaty               materials rather than a list of unsuitable
                                          timing window in breeding areas from                    Act are implemented by the U.S. Fish                  materials. One commenter said that
                                          March 1 to July 15 to reduce uncertainty                and Wildlife Service through the                      asphalt should be removed from the list
                                          associated with the phrase ‘‘to the                     issuance of take permits under                        of examples in the general condition
                                          maximum extent practicable.’’ Another                   appropriate circumstances. It would not               because research has shown that cured
                                          commenter indicated that this general                   be appropriate to modify this general                 asphaltic concrete is inert. One
                                          condition should prohibit haying or                     condition to include an explicit
                                                                                                                                                        commenter asserted that the general
                                          grazing during the nesting season unless                reference to Important Bird Areas,
                                                                                                                                                        condition does not go far enough to
                                          an emergency is declared. One                           though to the extent that they are
                                                                                                                                                        protect aquatic resources, and
                                          commenter said that the proposed                        encompassed by the phrase,
                                                                                                                                                        recommended changing the text to
                                          changes do not comply with the                          ‘‘waters...that serve as breeding areas for
                                                                                                                                                        prohibit ‘‘unacceptable chemical
                                          Migratory Bird Treaty Act and suggested                 migratory birds,’’ they are already
                                                                                                                                                        pollution’’ instead of requiring material
                                          that breeding areas should ‘‘be avoided                 covered. There is no Federal statute or
                                                                                                                                                        to be free of toxic pollutants in toxic
                                          to the maximum extent practicable to                    authority for establishing these areas.
                                                                                                                                                        amounts. This commenter also said that
                                          assure minimal adverse impact on                        We believe the general condition as
                                                                                                                                                        the use of substances such as creosote
                                          migratory birds and their breeding                      written is adequate to protect migratory
                                          areas.’’ This commenter asserted that                   birds.                                                and pentachlorophenol in open waters
                                          authorized activities under any NWP                        The general condition is adopted as                should be prohibited. One commenter
                                          must comply with the Migratory Bird                     proposed.                                             suggested that the general condition
                                          Treaty Act. This commenter also urged                      GC 5. Shellfish Beds. We proposed to               contain language that the fill material
                                          expansion of the general condition to                   remove language describing the general                must be obtained from an upland source
                                          include protection of Important Bird                    types of activities authorized by NWPs                and require it to be sufficiently sized
                                          Areas, which is an initiative by non-                   under sections 10 and 404. We also                    and shaped to resist erosion for normal
                                          governmental entities to protect avian                  proposed to add proposed NWP D,                       and expected high flows.
                                          species of conservation concern.                        Commercial Shellfish Aquaculture                         We do not agree that it is necessary
                                          Another commenter said that this                        Activities to the exception in this                   to further define what constitutes
                                          general condition should also state that                general condition.                                    ‘‘suitable material’’ for the purposes of
                                          the take of migratory birds, their eggs,                   One commenter stated that ‘‘areas of               this general condition. It is impractical
                                          nests, or parts is not allowed under the                concentrated shellfish populations’’                  to provide a comprehensive list of
                                          Migratory Bird Treaty Act without a                     should be defined. One commenter said                 unsuitable materials. If there are
                                          permit.                                                 that the general condition is too                     questions concerning the suitability of a
                                            Aquatic resources provide a diverse                   restrictive and should instead provide                particular material, the permittee should
                                          variety of breeding habitats for a wide                 the district engineer with discretion to              contact the appropriate Corps district
                                          variety of migratory avian species. The                 prohibit an activity that may have a                  office and ask if that material is
                                          replacement of ‘‘waterfowl’’ with                       deleterious effect on shellfish.                      considered suitable for the purposes of
                                          ‘‘migratory birds’’ will help reduce                       It would be inappropriate to define                this general condition. We continue to
                                          adverse impacts to aquatic habitats that                the term ‘‘areas of concentrated shellfish            believe that ‘‘asphalt’’ is an unsuitable
                                          are breeding areas of all migratory birds,              populations’’ at the national level. Such             material for use in waters of the United
                                          not just waterfowl. It is not practicable               determinations should be made on a                    States. Use of substances such as
                                          to identify a uniform window of 41⁄2                    case-by-case basis, and take into account             creosote and pentachlorophenol is
                                          months during which no activities in                    the characteristics of the shellfish                  prohibited by general condition 6,
                                          any habitat potentially used as breeding                species inhabiting the waters in which                Suitable Material, if they would be
                                          areas by migratory birds is allowed.                    the NWP activity is located. Criteria for             released into the environment in toxic
                                          Furthermore, breeding patterns and                      identifying areas of concentrated                     amounts. It is inappropriate to limit fill
                                          seasons vary by region. Time-of-year                    shellfish populations may vary by                     material only to material obtained from
                                          restrictions to protect breeding areas are              species and region. With the exception                uplands, since material excavated from
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                                          thus more appropriately addressed                       of NWPs 4 and 48, the NWPs should not                 aquatic environments may also be
                                          through regional conditions imposed by                  authorize activities in concentrated                  suitable. Other general conditions, such
                                          division engineers or special conditions                shellfish beds to ensure that the                     as general conditions 12 (Soil Erosion
                                          added to NWP authorizations by district                 activities authorized by NWPs result in               and Sediment Controls) and 9
                                          engineers. It would not be appropriate                  minimal adverse effects on the aquatic                (Management of Water Flows) address


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                                          11156                         Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices

                                          requirements for withstanding water                     require that permittees maintain the pre-             engineers. We do not believe it is
                                          flows.                                                  construction course, condition,                       necessary to retain language stating that
                                             This general condition is adopted as                 capacity, and location of open waters to              detailed studies or monitoring are not
                                          proposed.                                               the maximum extent practicable.                       required to ensure compliance with this
                                             GC 7. Water Supply Intakes. We                       Exceptions to this requirement may be                 general condition, though it is not our
                                          proposed to modify this general                         made if the primary purpose of the NWP                intent to require such studies where
                                          condition by removing language                          activity is to impound water or if the                compliance can be based on reasonable
                                          describing the general types of activities              activity benefits the aquatic                         assumptions about flow. District
                                          authorized by NWPs under sections 10                    environment.                                          engineers will use their judgment to
                                          and 404. We also proposed to add the                       One commenter supported the                        determine whether a particular activity
                                          phrase ‘‘or improvement’’ to account for                proposed modification. One commenter                  complies with this general condition. In
                                          adjustments of the public water supply                  supported the specific exception for                  order to ensure that this general
                                          intake structure that may be necessary                  impoundment activities, and two                       condition does not unduly restrict the
                                          to maintain or improve levels of service.               commenters supported the language that                construction and maintenance of storm
                                             One commenter supported the                          allows stream modifications if there are              water management activities, we have
                                          proposed change. One commenter stated                   positive benefits to aquatic resources,               clarified that it does not apply to
                                          the general condition is overly                         such as for stream restoration projects.              activities that have a primary purpose of
                                          restrictive and that the standard should                Two commenters supported the                          managing storm water flows. The issue
                                          be that activities that are likely to cause             language requiring compliance only to                 of maintaining passage of large woody
                                          an impact to a public water supply                      the maximum extent practicable. One                   debris in streams is more appropriately
                                          intake should be prohibited. One                        commenter said that the practicability                addressed through regional conditions,
                                          commenter requested we define                           considerations in this general condition              in areas where changes to the movement
                                          ‘‘proximity.’’                                          should take into account sound                        of large woody debris may result in
                                             This general condition is not too                    engineering practices and project                     more than minimal adverse effects on
                                          restrictive, given the importance of                    economics.                                            the aquatic environment. Compliance
                                          water supply intakes for public,                           The term ‘‘practicable’’ is defined in             with the requirements of this general
                                          commercial and industrial use. District                 the ‘‘Definitions’’ section of the NWPs.              condition will generally accommodate
                                          engineers will determine on a case-by-                  Costs, as well as existing technology and             the movement of bed load along a
                                          case basis what is necessary to comply                  logistics, are considered when making                 stream channel.
                                          with this general condition. We believe                 practicability determinations.                           This general condition is adopted as
                                          the term ‘‘proximity’’ is flexible enough                  One commenter stated that this                     proposed.
                                          to allow district engineers to determine                general condition should not apply to                    GC 10. Fills Within 100–Year
                                          that activities that will not adversely                 ephemeral streams. One commenter said                 Floodplains. We proposed to modify
                                          impact a public water supply intake are                 that this general condition should be                 this general condition by simply
                                          not in proximity to the intake. The term                modified to prohibit dewatering                       requiring permittees to comply with
                                          ‘‘proximity’’ should be defined on a                    between October 1 and March 31 to                     applicable state or local floodplain
                                          case-by-case basis, after taking into                   protect hibernating species in the                    management requirements that have
                                          account site characteristics and the                    substrate of waterbodies. Another                     been approved by the Federal
                                          nature of the waterbody and activity.                   commenter requested that the general                  Emergency Management Agency
                                             This general condition is adopted as                 condition retain language stating that                (FEMA).
                                          proposed.                                               detailed studies or monitoring would                     Several commenters supported the
                                             GC 8. Adverse Effects from                           not be required to ensure compliance,                 general condition. One commenter said
                                          Impoundments. We proposed to modify                     and that the Corps would normally                     that the proposed change may cause a
                                          this general condition by removing                      defer to local and state officials on the             slight increase in case-by-case review
                                          language describing the general types of                issue. Another commenter said that this               and assertion of discretionary authority.
                                          activities authorized by NWPs under                     general condition provides only limited               This commenter also requested that the
                                          sections 10 and 404.                                    value because it is qualitative and does              Corps provide guidance to assure
                                             One commenter recommended                            not require specific written                          consistent implementation of this
                                          amending the language to prohibit the                   documentation and assurances                          general condition. A number of
                                          use of the NWPs in waters accessible to                 regarding how the requirements are met.               commenters stated that local
                                          anadromous salmonids.                                   One commenter stated the requirements                 governments are better able to
                                             While the Corps recognizes the                       of this general condition are                         implement the FEMA program. Two
                                          importance of protecting aquatic                        inappropriate and hazardous with                      commenters favored the proposed
                                          species, including salmonids, it would                  respect to regulation of stormwater                   change because it avoids duplication
                                          not be practicable to prohibit use of                   management facilities. One commenter                  with other regulatory agencies, and
                                          NWPs in all waters accessible to                        said that this general condition should               another commenter stated that it is a
                                          anadromous salmonids. Restricting or                    require NWP activities to accommodate                 simple and straightforward requirement.
                                          prohibiting the use of NWPs in waters                   the passage of large woody debris and                 One commenter said that the general
                                          inhabited by anadromous salmon                          stream bed load, especially for stream                condition will create an incentive to
                                          species is more appropriately addressed                 crossing projects.                                    design projects that reduce impacts to
                                          through regional conditions imposed by                     This requirement must apply to                     waters of the United States to qualify for
                                          division engineers, or assertion of                     ephemeral streams, because they may                   an expedited NWP authorization.
                                          discretionary authority by district                     carry substantial flow during storm                      We do not agree that this general
                                          engineers.                                              events. Time-of-year restrictions on                  condition will increase case-by-case
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                                             This general condition is adopted as                 dewatering activities are more                        reviews and the number of times
                                          proposed.                                               appropriately addressed through the                   discretionary authority is exercised. The
                                             GC 9. Management of Water Flows.                     regional conditioning process or                      version of this general condition that
                                          We proposed to modify this general                      through special conditions added to                   was adopted in 2002 prohibited the use
                                          condition by simplifying the language to                NWP authorizations by district                        of NWPs 39, 40, 42, and 44 to authorize


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                                                                        Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Notices                                             11157

                                          permanent, above-grade fills in waters                     We disagree that the pre-construction              modification of this general condition
                                          of the United States within mapped                      notification review process will produce              will not cause the NWP program to
                                          floodways. Those activities required                    more uncertainty for permittees. If the               result in more than minimal individual
                                          authorization by regional general                       proposed work will have minimal                       and cumulative adverse environmental
                                          permits or individual permits. The                      adverse effects on the aquatic                        effects.
                                          general condition adopted today allows                  environment and other public interest                    One commenter said that this general
                                          those activities to be authorized by                    review factors, such as floodplain values             condition should be modified to require
                                          NWP, provided the activities comply                     and flood hazards, the activity can be                documentation of compliance with
                                          with applicable state and local                         authorized by the applicable NWP. One                 FEMA minimum standards by a
                                          floodplain management requirements                      benefit of the modified general                       licensed professional engineer, and
                                          and the district engineer determines,                   condition is that it applies to all NWP               require consultation with resource
                                          after reviewing the pre-construction                    activities, not just NWPs 39, 40, 42, and             agencies. One commenter suggested
                                          notification, that the individual and                   44.                                                   modifying this general condition to
                                          cumulative adverse effects on the                          One commenter indicated that FEMA                  require prospective permittees to
                                          aquatic environment and other public                    regulations are only designed to assure               demonstrate they have applied the
                                          interest review factors are minimal. We                 development is reasonably safe from                   National Environmental Policy Act
                                          continue to support efforts that reduce                 flooding not to protect the quality and               process and to justify ‘‘no reasonable
                                          duplication with other agencies.                        quantity of downstream waterways or                   option’’ exists before filling within the
                                             Many commenters objected to the                      the aquatic resources associated with                 base floodplain. One commenter noted
                                          general condition and requested that the                the floodplain and downstream water                   that not all floodplains have been
                                          Corps retain the previous floodplain                    segments. Two commenters stated that                  mapped and as such they do not fall
                                          prohibitions for NWPs 39, 40, 42 and                    floodplain managers will not receive                  under authority of a local government.
                                          44. They said that the Corps has an                     pre-construction notifications and                    Two commenters requested clarification
                                          independent obligation and role in                      therefore they will not be aware of                   on how the general condition will be
                                          protecting waters of the United States.                 floodplain development activities                     applied when a 100-year floodplain is
                                          One commenter stated no fills should be                 because they will no longer receive                   identified by an engineering study but
                                          permitted within the 100-year                           public notices for these individual                   FEMA approved management
                                          floodplain in specific watersheds. One                  permits. Two commenters said that the                 requirements are absent.
                                                                                                  National Flood Insurance Program                         Requiring documentation of
                                          commenter said that employing the use
                                                                                                  standards are insufficient to minimize                compliance with FEMA-approved
                                          of discretionary authority on a case-by-
                                                                                                  flood hazard and floodplain impacts.                  standards is unnecessary for the
                                          case basis will produce uncertainty for                                                                       purposes of the NWPs, because such
                                                                                                  One commenter argued that the Corps
                                          prospective permittees.                                                                                       requirements are more appropriately
                                                                                                  should strengthen and not weaken the
                                             We do not believe it is appropriate to               floodplain protections that are outlined              addressed through state and local
                                          use the Section 404 program to restrict                 in 33 CFR 320.4(l)(2) and Executive                   construction authorizations. If a
                                          activities in flood plains over and above               Order 11988, Floodplain Management.                   separate National Environmental Policy
                                          the requirements of FEMA-approved                       One commenter concluded that the                      Act process is applicable for a particular
                                          state and local floodplain management                   NWPs will have more than minimal                      development activity, then the lead
                                          programs, except in specific cases where                impacts because of the proposed                       Federal agency will conduct that
                                          the district engineer determines that an                modification of this general condition.               process. For the purposes of the NWPs,
                                          activity would result in more than                         When reviewing pre-construction                    compliance with the National
                                          minimal adverse effects. This general                   notifications, district engineers will                Environmental Policy Act is achieved
                                          condition, in conjunction with reviews                  assess adverse effects to the aquatic                 through the decision documents issued
                                          of pre-construction notifications, will                 environment, including impacts to                     for each NWP. This general condition
                                          provide sufficient protection to                        aquatic resources located within 100-                 does not apply to 100-year floodplains
                                          floodplain values that is appropriate to                year floodplains and downstream                       where FEMA-approved state or local
                                          the scope of the Corps regulatory                       waterways. General condition 9 requires               floodplain management requirements
                                          authorities and implementing                            permittees, to maintain to the maximum                have not been established. In general,
                                          regulations. This general condition will                extent practicable, the pre-construction              such floodplains have not been mapped.
                                          also support the application of FEMA-                   course, condition, capacity, and location             In such areas, district engineers will
                                          approved state or local floodplain                      of open waters. State water quality                   review pre-construction notifications
                                          management requirements that are                        certifications ensure that NWPs do not                and assess the adverse effects on
                                          established to reduce flood hazards.                    authorize activities that degrade                     floodplains and flood hazards to the
                                          Restricting or prohibiting development                  downstream water quality. Floodplain                  extent practicable, and add special
                                          of 100-year floodplains is more                         development activities are already                    conditions as appropriate.
                                          appropriately addressed through the                     thoroughly reviewed by state and local                   Two commenters requested
                                          land use planning and zoning                            governments under their planning a