Appendix_E_404_Permit.pdf

Appendix E 404 Permit

Attachment 1

2012 Nationwide Permits, Conditions, District Engineer’s Decision, Further Information, and

Definitions (with corrections)

DECISION DOCUMENT

NATIONWIDE PERMIT 14

This document discusses the factors considered by the Corps of Engineers (Corps) during the issuance process for this Nationwide Permit (NWP). This document contains: (1) the public interest review required by Corps regulations at 33 CFR 320.4(a)(1) and (2); (2) a discussion of the environmental considerations necessary to comply with the National Environmental Policy Act; and (3) the impact analysis specified in Subparts C through F of the 404(b)(1) Guidelines (40 CFR Part 230). This evaluation of the NWP includes a discussion of compliance with applicable laws, consideration of public comments, an alternatives analysis, and a general assessment of individual and cumulative impacts, including the general potential effects on each of the public interest factors specified at 33 CFR 320.4(a).

1.0 Text of the Nationwide Permit

Linear Transportation Projects. Activities required for the construction, expansion, modification, or improvement of linear transportation projects (e.g., roads, highways, railways, trails, airport runways, and taxiways) in waters of the United States. For linear transportation projects in non-tidal waters, the discharge cannot cause the loss of greater than 1I2-acre of waters of the United States. For linear transportation projects in tidal waters, the discharge cannot cause the loss of greater than l/3-acre of waters of the United States. Any stream channel modification, including bank stabilization, is limited to the minimum necessary to construct or protect the linear transportation proj ect; such modifications must be in the immediate vicinity of the project.

This NWP also authorizes temporary structures, fills, and work necessary to construct the linear transportation project. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.

This NWP cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity if: (1) the loss of waters of the United States exceeds 1/10-acre; or (2) there is a discharge in a special aquatic site, including wetlands.

(See general condition 31.) (Sections 10 and 404)

Note: Some discharges for the construction of farm roads or forest roads, or temporary roads for moving mining equipment, may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).

1.1 Requirements

General conditions of the NWPs are in the Federal Register notice announcing the issuance of this NWP. Pre-construction notification requirements, additional conditions, limitations, and restrictions are in 33 CFR part 330.

1.2 Statutory Authority

• Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)

• Section 404 of the Clean Water Act (33 U.S.C. 1344)

1.3 Compliance with Related Laws (33 CFR 320.3)

1.3.1 General

NWPs are a type of general permit designed to authorize certain activities that have minimal individual and cumulative adverse effects on the aquatic environment and generally comply with the related laws cited in 33 CFR 320.3. Activities that result in more than minimal individual and cumulative adverse effects on the aquatic environment cannot be authorized by NWPs. Individual review of each activity authorized by an NWP will not normally be performed, except when pre-construction notification to the Corps is required or when an applicant requests verification that an activity complies with an NWP. Potential adverse impacts and compliance with the laws cited in 33 CFR 320.3 are controlled by the terms and conditions of each NWP, regional and case-specific conditions, and the review process that is undertaken prior to the issuance ofNWPs.

The evaluation of this NWP, and related documentation, considers compliance with each of the following laws, where applicable: Sections 401, 402, and 404 of the Clean Water Act;

Section 307(c) of the Coastal Zone Management Act of 1972, as amended; Section 302 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended; the National Environmental Policy Act of 1969; the Fish and Wildlife Act of 1956; the Migratory Marine Game-Fish Act; the Fish and Wildlife Coordination Act, the Federal Power Act of 1920, as amended; the National Historic Preservation Act of 1966; the Interstate Land Sales Full Disclosure Act; the Endangered Species Act; the Deepwater Port Act of 1974; the Marine Mammal Protection Act of 1972; Section 7(a) of the Wild and Scenic Rivers Act; the Ocean Thermal Energy Act of 1980; the National Fishing Enhancement Act of 1984; the Magnuson-Stevens Fishery and Conservation and Management Act, the Bald and Golden Eagle Protection Act; and the Migratory Bird Treaty Act. In addition, compliance of the NWP with other Federal requirements, such as Executive Orders and Federal regulations addressing issues such as floodplains, essential fish habitat, and critical resource waters is considered.

1.3.2 Terms and Conditions

Many NWPs have pre-construction notification requirements that trigger case-by-case review of certain activities. Two NWP general conditions require case-by-case review of all activities that may adversely affect Federally-listed endangered or threatened species or historic properties (i.e., general conditions 18 and 20). General condition 16 restricts the use ofNWPs for activities that are located in Federally-designated wild and scenic rivers. None of the NWPs authorize the construction of artificial reefs. General condition 28 prohibits the use of an NWP with other NWPs, except when the acreage loss of waters of the United States does not exceed the highest specified acreage limit of the NWPs used to authorize the single and complete project.

In some cases, activities authorized by an NWP may require other federal, state, or local authorizations. Examples of such cases include, but are not limited to: activities that are in marine sanctuaries or affect marine sanctuaries or marine mammals; the ownership, construction, location, and operation of ocean thermal conversion facilities or deep water ports beyond the territorial seas; activities that result in discharges of dredged or fill material into waters of the United States and require Clean Water Act Section 401 water quality certification; or activities in a state operating under a coastal zone management program approved by the Secretary of Commerce under the Coastal Zone Management Act. In such cases, a provision of the NWPs states that an NWP does not obviate the need to obtain other authorizations required by law. [33 CFR 330.4(b )(2)]

Additional safeguards include provisions that allow the Chief of Engineers, division engineers, and/or district engineers to: assert discretionary authority and require an individual permit for a specific activity; modify NWPs for specific activities by adding special conditions on a case-by-case basis; add conditions on a regional or nationwide basis to certain NWPs; or take action to suspend or revoke an NWP or NWP authorization for activities within a region or state. Regional conditions are imposed to protect important regional concerns and resources. [33 CFR 330.4(e) and 330.5]

1.3.3 Review Process

The analyses in this document and the coordination that was undertaken prior to the issuance of the NWP fulfill the requirements of the National Environmental Policy Act (NEPA), the Fish and Wildlife Coordination Act, and other acts promulgated to protect the quality of the environment.

All NWPs that authorize activities that may result in discharges into waters of the United States require water quality certification. NWPs that authorize activities within, or affecting land or water uses within a state that has a Federally-approved coastal zone management program, must also be certified as consistent with the state's program. The procedures to ensure that the NWPs comply with these laws are described in 33 CFR 330.4(c) and (d), respectively.

1.4 Public Comment and Response

For a summary of the public comments received in response to the February 16,2011, Federal Register notice, refer to the preamble in the Federal Register notice announcing the reissuance of this NWP. The substantive comments received in response to the February 16, 2011, Federal Register notice were used to improve the NWP by changing NWP terms and limits, pre-construction notification requirements, and/or NWP general conditions, as necessary.

The Corps did not propose any changes to this NWP. One commenter suggested that this NWP should authorize only the maintenance of existing linear transportation projects because the construction of new linear transportation projects results in more than minimal adverse environmental effects. One commenter said that this NWP should not authorize parking lots. One commenter stated that activities in tidal waters should not be authorized by this NWP because any proposed linear transportation project impacting tidal wetlands require an individual permit to more thoroughly assess impacts on those aquatic habitats.

This NWP should not be limited to authorizing the maintenance of existing linear transportation projects. The terms and conditions of this NWP, including its acreage limits and pre-construction notification thresholds, provide an effective means for authorizing linear transportation projects with minimal individual and cumulative adverse effects on the aquatic environment. Parking lots may be an integral part of a single and complete linear transportation project and may be authorized under this NWP. Small linear transportation projects constructed or maintained in tidal waters may be authorized by this NWP, if they comply with appropriate thresholds and result in minimal adverse effects on the aquatic environment. Division engineers can regionally condition this NWP to restrict or prohibit the use of this NWP to authorize structures or fills in tidal waters where necessary.

Most commenters suggested adding a linear foot limit to this NWP to ensure that it only authorizes activities with minimal adverse effects on the aquatic environment, stating that the current NWP authorizes large amounts of small streams to be permanently lost or significantly altered. One commenter recommended a 100 linear foot limit for the loss of perennial, intermittent, and ephemeral streams. One commenter said that the 112-acre limit is too large when compared to other NWPs that limit impacts to 1I10-acre. One commenter suggested limiting private roads to 200 feet in length, with a maximum width of 16 feet.

One commenter recommended that public road projects with multiple crossings should have a maximum cumulative limit of two acres for all crossings associated with that project.

We believe the II2-acre and 1/3-acre limits are appropriate for ensuring that the NWP authorizes only those linear transportation projects that result in minimal individual and cumulative adverse effects on the aquatic environment. Division engineers can regionally condition this NWP to decrease these acreage limits or impose linear foot limits to provide additional protection for wetlands and other waters in a particular district or region. We do not agree that public and private crossings should have different acreage limits. The environmental effects are not dependent on the status of the entity who proposes to construct the project. A 200 linear foot limit was removed from NWP 14 in 2007 to simplify this NWP. The Corps is not aware of situations where this change resulted in projects being authorized that had more than minimal adverse effects.

One commenter asserted that using this NWP prevents the public from commenting on large transportation projects. Another commenter said that this NWP should not authorize expansion of existing projects, because it discourages avoidance and minimization and is contrary to the 404(b)( 1) Guidelines. One commenter stated that use of this NWP for the expansion, modification, or improvement of previously authorized projects could result in cumulative impacts that exceed the acreage limits and said the impacts of previously authorized projects should count towards the acreage limit.

Linear transportation projects that involve small losses of waters of the United States and result in minimal adverse effects on the aquatic environment would not generally generate substantive public comments in response to a public notice and should not require public notices. It is appropriate to authorize expansions, modifications, or improvements to existing projects, as long as those activities comply with the terms and conditions of the NWP, including the applicable acreage limit. An expansion, modification, or improvement of an existing project has few practicable alternatives available because it is a change to a previously constructed project. Alternatives that would involve relocating an existing project are likely to result in more adverse effects to the aquatic environment. An expansion, modification, or improvement of a previously authorized single and complete linear transportation project should include the previously authorized losses of waters of the United States when determining whether the acreage limit would be exceeded by the expanded, modified, or improved project, if the expansion, modification, or improvement is not a separate single and complete project. Factors that may affect this determination include the length of time between the original project and the expansion, modification or improvement;

the degree of independent utility of the original project and the expansion, modification or improvement; and the degree to which the expansion, modification or improvement may have been already envisioned, or planning might already have begun, at the time the original project was authorized. Under no circumstance will district engineers allow "piecemealing" of projects (for this or any other NWP) in order to meet thresholds.

One commenter requested that the term "minimum necessary" used in the first paragraph of this NWP be defined. One commenter asked if temporary fill may be put in place for up to two years without requiring any mitigation, and another commenter requested a definition for "temporary." One commenter suggested that culverts or other appropriate measures should be required to maintain existing drainage patterns, all stream crossings should span the bankfull width of a stream, and in cases where bottomless culverts or bridge structures are not used, the bottom of the structure should match stream slope. Another commenter suggested that the NWP should require the use of best management practices to avoid sediment loading of waters and that best management practices should be used in upland areas and within waters to protect downstream water quality.

The decision as to whether a stream channel modification is the "minimum necessary" and whether a fill is "temporary" is to be determined on a case-by-case basis, after considering the specifics of the proposed activity and the types of aquatic resources proposed to be impacted by the linear transportation project. General condition 2, aquatic life movements, and general condition 9, management of water flows, require that linear transportation projects be designed to sustain corridors for aquatic life movements and maintain, to the maximum extent practicable, the pre-construction course, condition, capacity, and location of streams and other open waters. General condition 12, soil erosion and sediment controls, requires permittees to take appropriate measures to reduce or prevent movements of sediment into waters during construction. Water quality management measures may also be required by district engineers on a case-by-case basis after evaluating a pre-construction notification.

One commenter said that pre-construction notification should be required for stream impacts that exceed 100 linear feet. Another commenter stated that any stream channel modifications should require pre-construction notification. One commenter suggested requiring low ground pressure equipment, wide tires, rubberized racks, lightweight equipment, and the use of varied paths to avoid repeatedly crossing wetlands at the same location, to protect wetlands.

One commenter suggested sending pre-construction notifications to tribes to avoid impacts to tribal treaty natural and cultural resources. One commenter recommended that the Corps consult with the Federal Highway Administration to streamline projects and align with their efforts.

The present pre-construction notification thresholds provide sufficient protection for streams, and division engineers can regionally condition this NWP to require pre construction notification for proposed losses of stream beds that would exceed a specified amount. Streams with riffle and pool complexes are considered to be special aquatic sites under the 404(b)( 1) Guidelines and would require pre-construction notification. General condition 11, equipment, establishes requirements for equipment working in wetlands or mudflats and we believe this general condition provides sufficient protection for those types of construction impacts. Division engineers can regionally condition this NWP to require pre-construction notification for activities that may affect tribal treaty resources, and consult with those tribes before making a decision on whether the activity is authorized by this NWP. This NWP, as well as other NWPs such as NWP 23, provides a means for streamlining the authorization of linear transportation projects and working cooperatively with the Federal Highway Administration and state departments of transportation.

2.0 Alternatives

This evaluation includes an analysis of alternatives based on the requirements ofNEPA, which requires a more expansive review than the Clean Water Act Section 404(b)(1) Guidelines. The alternatives discussed below are based on an analysis of the potential environmental impacts and impacts to the Corps, Federal, Tribal, and state resource agencies, general public, and prospective permittees. Since the consideration of off-site alternatives under the 404(b)(1) Guidelines does not apply to specific projects authorized by general permits, the alternatives analysis discussed below consists of a general NEP A alternatives analysis for the NWP.

2.1 No Action Alternative (No Nationwide Permit)

The no action alternative would not achieve one of the goals of the Corps Nationwide Permit Program, which is to reduce the regulatory burden on applicants for activities that result in minimal individual and cumulative adverse effects on the aquatic environment. The no action alternative would also reduce the Corps ability to pursue the current level of review for other activities that have greater adverse effects on the aquatic environment, including activities that require individual permits as a result of the Corps exercising its discretionary authority under the NWP program. The no action alternative would also reduce the Corps ability to conduct compliance actions.

If this NWP is not available, substantial additional resources would be required for the Corps to evaluate these minor activities through the individual permit process, and for the public and Federal, Tribal, and state resource agencies to review and comment on the large number of public notices for these activities. In a considerable majority of cases, when the Corps publishes public notices for proposed activities that result in minimal adverse effects on the aquatic environment, the Corps typically does not receive responses to these public notices from either the public or Federal, Tribal, and state resource agencies. Another important benefit of the NWP program that would not be achieved through the no action alternative is the incentive for project proponents to design their projects so that those activities meet the terms and conditions of an NWP. The Corps believes the NWPs have significantly reduced adverse effects to the aquatic environment because most applicants modify their projects to comply with the NWPs and avoid the delays and costs typically associated with the individual permit process.

In the absence ofthis NWP, Department of the Army (DA) authorization in the form of another general permit (i.e., regional or programmatic general permits, where available) or individual permits would be required. Corps district offices may develop regional general permits if an NWP is not available, but this is an impractical and inefficient method for activities with minimal individual and cumulative adverse effects on the aquatic environment that are conducted across the Nation. Not all districts would develop these regional general permits for a variety of reasons. The regulated public, especially those companies that conduct activities in more than one Corps district, would be adversely affected by the widespread use of regional general permits because of the greater potential for lack of consistency and predictability in the authorization of similar activities with minimal individual and cumulative adverse effects on the aquatic environment. These companies would incur greater costs in their efforts to comply with different regional general permit requirements between Corps districts. Nevertheless, in some states Corps districts have issued programmatic general permits to take the place of this and other NWPs.

However, this approach only works in states with regulatory programs comparable to the Corps Regulatory Program.

2.2 National Modification Alternatives

Since the Corps Nationwide Permit program began in 1977, the Corps has continuously strived to develop NWPs that authorize activities that result only in minimal individual and cumulative adverse effects on the aquatic environment. Every five years the Corps reevaluates the NWPs during the reissuance process, and may modify an NWP to address concerns for the aquatic environment. Utilizing collected data and institutional knowledge concerning activities authorized by the Corps regulatory program, the Corps reevaluates the potential impacts of activities authorized by NWPs. The Corps also uses substantive public comments on proposed NWPs to assess the expected impacts. This NWP was developed to authorize linear transportation projects that have minimal individual and cumulative adverse effects on the aquatic environment. The Corps has considered suggested changes to the terms and conditions of this NWP, as well as modifying or adding NWP general conditions, as discussed in the preamble of the Federal Register notice announcing the reissuance of this

NWP.

In the February 16,2011, Federal Register notice, the Corps requested comments on the proposed reissuance of this NWP. The Corps did not propose any changes to this NWP.

2.3 Regional Modification Alternatives

An important aspect for the NWPs is the emphasis on regional conditions to address differences in aquatic resource functions, services, and values across the nation. All Corps divisions and districts are expected to add regional conditions to the NWPs to enhance protection of the aquatic environment and address local concerns. Division engineers can also revoke an NWP if the use of that NWP results in more than minimal individual and cumulative adverse effects on the aquatic environment, especially in high value or unique wetlands and other waters.

Corps divisions and districts also monitor and analyze the cumulative adverse effects of the NWPs, and if warranted, further restrict or prohibit the use of the NWPs to ensure that the NWPs do not authorize activities that result in more than minimal individual and cumulative adverse effects on the aquatic environment. To the extent practicable, division and district· engineers will use regulatory automated information systems and institutional knowledge about the typical adverse effects of activities authorized by NWPs, as well as substantive public comments, to assess the individual and cumulative adverse effects on the aquatic environment resulting from regulated activities.

2.4 Case-specific On-site Alternatives

Although the terms and conditions for this NWP have been established at the national level to authorize most activities that have minimal individual and cumulative adverse effects on the aquatic environment, division and district engineers have the authority to impose case specific special conditions on NWP authorizations to ensure that the authorized activities will result in minimal individual and cumulative adverse effects.

General condition 23 requires the permittee to minimize and avoid impacts to waters of the United States to the maximum extent practicable on the project site. Off-site alternatives catinot be considered for activities authorized by NWPs. During the evaluation of a pre construction notification, the district engineer may determine that additional avoidance and minimization is practicable. The district engineer may also condition the NWP authorization to require compensatory mitigation to offset losses of waters of the United States and ensure that the net adverse effects on the aquatic environment are minimal. As another example, the NWP authorization can be conditioned to prohibit the permittee from conducting the activity during specific times of the year to protect spawning fish and shellfish. If the proposed activity will result in more than minimal adverse effects on the aquatic environment, then the district engineer will exercise discretionary authority and require an individual permit. Discretionary authority can be asserted where there are concerns for the aquatic environment, including high value aquatic habitats. The individual permit review process requires a project-specific alternatives analysis, including the consideration of off site alternatives, and a public interest review.

3.0 Affected Environment

The affected environment consists of terrestrial and aquatic ecosystems. The total land area in the United States is approximately 2,300,000,000 acres, and the total land area in the contiguous United States is approximately 1,894,000,000 acres (Lubowski et al. 2006) .

Land uses in 48 states of the contiguous United States as of 2002 is provided in Table 3.1 (Lubowski et al. 2006). In the contiguous United States, approximately 67 percent of the land is privately owned, 31 percent is held by the United States government, and two percent is owned by state or local governments (Dale et al. 2000). Developed non-federal lands comprise 4.4 percent of the total land area of the contiguous United States (Dale et al. 2000).

Table 3.1. Agricultural and non-agricultural land uses in the 48 states (Lubowski et al. 2006).

'7'",;,:},,/,;;:;> Aeres Percent of

'" ,; ,I.a~dtJs~ " Total Agriculture 1,171,000,000 61.8

Forest land 425,000,000 22.4

Transportation use 27,000,000 1.4

Recreation and wildlife areas 100,000,000 5.3

National defense areas 15,000,000 0.8

Urban land 59,000,000 3.1

Miscellaneous use 97,000,000 5.1

Total land area;', .' ,\< 1 894,000,000 100.0

The Federal Geographic Data Committee has established the Cowardin system developed by the U.S. Fish and Wildlife Service (USFWS) (Cowardin et al. 1979) as the national standard for wetland mapping, monitoring, and data reporting (Dahl 2011) (see also http://www.fgdc. gov/standards/proj ectsIFGDC-standards-projects/wetlands/fgdc-announce , accessed December 12,2011). The Cowardin system is a hierarchical system which describes various wetland and deepwater habitats, using structural characteristics such as vegetation, substrate, and water regime as defining characteristics. Wetlands are defined by plant communities, soils, or inundation or flooding frequency. Deepwater habitats are permanently flooded areas located below the wetland boundary. In rivers and lakes, deepwater habitats are usually more than two meters deep.

There are five major systems in the Cowardin classification scheme: marine, estuarine, riverine, lacustrine, and palustrine (Cowardin et al. 1979). The marine system consists of open ocean on the continental shelf and its high energy coastline. The estuarine system consists of tidal deepwater habitats and adjacent tidal wetlands that are usually partially enclosed by land, but may have open connections to open ocean waters. The riverine system generally consists of all wetland and deepwater habitats located within a river channel. The lacustrine system generally consists of wetland and deepwater habitats located within a topographic depression or dammed river channel, with a total area greater than 20 acres.

The palustrine system generally includes all non-tidal wetlands and wetlands located in tidal areas with salinities less than 0.5 parts per thousand; it also includes ponds less than 20 acres in size. Approximately 95 percent of wetlands in the conterminous United States are freshwater wetlands, and the remaining 5 percent are estuarine or marine wetlands (Dahl 2011).

The Emergency Wetlands Resources Act of 1986 (Public Law 99-645) requires the USFWS . to submit wetland status and trends reports to Congress (Dahl 2011). The latest status and trends report, which covers the period of 2004 to 2009, is summarized in Table 3.2.

Table 3.2. Estimated aquatic resource acreages in the conterminous United States in 2009 (Dahl 2011).

Estimated Area Aquatic Habitat Category in 2009

(acres)

Marine intertidal 227,800

Estuarine intertidal non-vegetated 1,017,700

Estuarine intertidal vegetated 4,539,700

All intertidal waters and wetlands 5,785,200

Freshwater ponds 6,709,300

Freshwater vegetated 97,565,300

• Freshwater emergent wetlands 27,430,500

• Freshwater shrub wetlands 18,511,500

• Freshwater forested wetlands 51,623,300

All freshwater wetlands 104,274,600

Lacustrine deepwater habitats 16,859,600

Riverine deepwater habitats 7,510,500

Estuarine subtidal habitats 18,776,500

AIl wetlands and deepwater habitats 153,206,400

The acreage of lacustrine deepwater habitats does not include the open waters of Great Lakes (Dahl 2011).

According to Hall et al. (1994), there are more than 204 million acres of wetlands and deepwater habitats in the State of Alaska, including approximately 174.7 million acres of wetlands. Wetlands and deepwater habitats comprise approximately 50.7 percent of the surface area in Alaska (Hall et al. 1994).

The National Resources Inventory (NRI) is a statistical survey conducted by the Natural Resources Conservation Service (NRCS) (USDA 2009) of natural resources on non-federal land in the United States. The NRCS defines non-federal land as privately owned lands, tribal and trust lands, and lands under the control of local and State governments. The land use determined by 2007 NRI is summarized in Table 3.3. The 2007 NRI estimates that there are 110,671,500 acres of palustrine and estuarine wetlands on non-Federal land and water areas in the United States (USDA 2009). The 2007 NRI estimates that there are 48,471,100 acres of open waters on non-Federal land in the United States, including lacustrine, riverine, and marine habitats, as well as estuarine deepwater habitats.

Table 3.3. The 2007 National Resources Inventory acreages for palustrine and estuarine wetlands on non-federal land, by land cover/use category (USDA 2009).

Area of Palustrine and National Resources Inventory Land Cover/Use Category Estuarine Wetlands

(acres) cropland, pasture land, and Conservation Reserve Program

16,790,300 land forest land 66,043,100 rangeland 7,940,300 other rural land 14,744,800 developed land 1,571,900 water area 3,581,100

Total 110,671,500

The land cover/use categories used by the 2007 NRI are defined below (USDA 2009).

Croplands are areas used to produce crops adapted for harvest. Pastureland is land managed for livestock grazing, through the production of introduced forage plants. Conservation Reserve Program land is under a Conservation Reserve Program contract. Forest land is comprised of at least 10 percent single stem woody plant species that will be at least 13 feet tall at maturity. Rangeland is land on which plant cover consists mostly of native grasses, herbaceous plants, or shrubs suitable for grazing or browsing, and introduced forage plant species. Other rural land consists of farmsteads and other farm structures, field windbreaks, marshland, and barren land. Developed land is comprised of large urban and built-up areas (i.e., urban and built-up areas 10 acres or more in size), small built-up areas (i.e., developed lands 0.25 to 10 acres in size) , and rural transportation land (e.g., roads, railroads, and associated rights-of-way outside urban and built-up areas). Water areas are comprised of waterbodies and streams that are permanent open waters.

The wetlands data from the Fish and Wildlife Service's Status and Trends study and the Natural Resources Conservation Service's National Resources Inventory should not be compared, because they use different methods and analyses to produce their results (Dahl 2011).

Leopold, Wolman, and Miller (1964) estimated that there are approximately 3,250,000 miles of river and stream channels in the United States. This estimate is based on an analysis of 1 :24,000 scale topographic maps, by stream order. This estimate does not include many small streams. Many small streams are not mapped on 1 :24,000 scale U.S. Geological Survey topographic maps (Leopold 1994) or included in other analyses (Meyer and Wallace 2001). In a study of stream mapping in the southeastern United States, only 20% of the stream network was mapped on 1:24,000 scale topographic maps, and nearly none of the observed intermittent or ephemeral streams were indicated on those maps (Hansen 2001).

For a 1 :24,000 scale topographic map, the smallest tributary found by using 10-foot contour interval has drainage area of 0.7 square mile and length of 1,500 feet, and smaller channels are common throughout the United States (Leopold 1994). Due to the difficulty in mapping small streams, there are no accurate estimates of the total number of river or stream miles in the conterminous United States that may be classified as "waters of the United States."

The USFWS status and trends study does not assess the condition or quality of wetlands and deepwater habitats (Dahl 2011). The Nation's aquatic resource base is underestimated by the USFWS status and trends study, the National Wetland Inventory (NWI), and studies that estimate the length or number of stream channels within watersheds (see above). The status and trends study does not include Alaska and Hawaii. The underestimate by the status and trends study and the NWI results from the minimum size of wetlands detected through remote sensing techniques and the difficulty of identifying certain wetland types through those remote sensing techniques. The NWI maps do not show small or linear wetlands (Tiner 1997) that may be directly impacted by activities authorized by NWPs. For the latest USFWS status and trends study, most of the wetlands identified are larger than 1 acre, but the minimum size of detectable wetlands varies by wetland type (Dahl 2011). Some wetland types less than one acre in size can be identified; the smallest wetland detected for the most recent status and trends report was 0.1 acre (Dahl 2011). Because of the limitations of remote sensing techniques, certain wetland types are not included in the USFWS status and trends study: seagrass beds, submerged aquatic vegetation, submerged reefs, and certain types of forested wetlands (Dahl 2011). Therefore, activities authorized by NWPs will adversely affect a smaller proportion ofthe Nation's wetland base than indicated by the wetlands acreage estimates provided in the most recent status and trends report, or the NWI maps for a particular region.

Information on water quality in waters and wetlands, as well as the causes of water quality impairment, is collected by the U.S. Environmental Protection Agency (U.S.EPA) under sections 305(b) and 303(d) of the Clean Water Act. Table 3.4 provides U.S. EPA's most recent national summary of water quality in the Nation's waters and wetlands.

Table 3.4. The 2010 national summary of water quality data (U.S. EPA 2012).

'!;;t~t~~~:;l;; '~.~.:s' Percent of 4~.::.' c;.~ " , , wate~ ,. "'Good

-".,'<',' c water" , 'assessed waters' waters Rivers and 3,533,205 27.3 445,079 6,369 streams miles miles miles miles miles Lakes, 41,666,049 18,796,765 45.1 5,833,964 38,681 12,924,120 reservoirs and acres acres acres acres acres onds Bays and 87,791 32,830 square 37.4 11,045 17 square 21,768 estuaries square miles miles square miles square miles miles Coastal 58,618 miles 9,143 miles 15.6 1,746 miles o miles 7,396 shoreline miles Ocean and 54,120 1,275 square 2.4 968 square o square 307 square near coastal square miles miles miles miles miles waters Wetlands 107,700,000 1,311,645 1.2 208,944 805 acres 1,101,895 acres acres acres acres Great Lakes 5,202 miles 4,431 miles 85.2 78 miles o miles 4,353 shoreline miles Great Lakes 60,546 53,332 88.1 62 square o square 53,270 o en waters s uare miles s uare miles miles miles s uare miles

According to the 2010 national summary (U.S. EPA 2012), 53% of assessed rivers and streams, 66% of assessed bays and estuaries, 81 % of assessed coastal shoreline, 24% of assessed ocean and near coastal waters, and 84% of assessed wetlands are impaired.

For rivers and streams, 34 causes of impairment were identified, and the top 10 causes were pathogens, sediment, nutrients, organic enrichment/oxygen depletion, polychlorinated biphenyls, habitat alterations, metals (excluding mercury), mercury, flow alterations, and temperature. The primary sources of impairment for the assessed rivers and streams were agriculture, atmospheric deposition, unknown sources, hydrology modification, urban related runoff/stormwater, wildlife, municipal discharges/sewage, unspecified non-point sources, habitat alterations, and resource extraction.

For bays and estuaries, 28 causes of impairment were identified, and the top 10 causes of impairment were mercury, pathogens, polychlorinated biphenyls, organic enrichment/oxygen depletion, dioxins, metals (excluding mercury), noxious aquatic plants, pesticides, algal growth, and unknown causes of impaired biota. The primary sources of impairment of bays and estuaries were atmospheric deposition, "unknown," municipal discharges/sewage, wildlife, industrial, other sources, agriculture, unspecified non-point sources, hydrologic modifications, and habitat alterations.

For coastal shorelines, 17 causes of impairment were listed, led by mercury, pathogens, organic enrichment/oxygen depletion, metals (excluding mercury), pesticides, polychlorinated biphenyls, turbidity, nutrients, algal growth, and unknown causes of impaired biota. The top 10 sources of impairment for coastal shorelines were "unknown," atmospheric deposition, urban-related runoff/stormwater, municipal discharges/sewage, agriculture, hydrologic modifications, industrial, unspecified non-point sources, wildlife, and recreational boating and marinas.

For ocean and near coastal waters, 16 causes of impairment were identified, and the top 10 causes of impairment were mercury, pathogens, organic enrichment/oxygen depletion, nuisance exotic species, toxics, polychlorinated biphenyls, turbidity, pesticides, metals, and toxic organics. Habitat alterations were ranked eleventh. The primary sources of impairment of ocean and near coastal waters were "unknown," atmospheric deposition, recreational boating and marinas, municipal discharges/sewage, unspecified non-point sources, urban related runofflstormwater, recreation and tourism (non-boating), industrial, hydrologic modifications, and construction.

For wetlands, 27 causes of impairment were identified, and the top 10 causes were organic enrichment/oxygen depletion, pathogens, mercury, metals (excluding mercury), habitat alterations, nutrients, flow alterations, toxic inorganics, total toxics, and sediment. The primary sources for wetland impairment were "unknown," wildlife, municipal discharges/sewage, agriculture, atmospheric deposition, industrial, hydrology modifications, resource extraction, other, and unspecified non-point sources.

Most causes and sources of impairment are not due to activities regulated under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899. Habitat alterations as a cause or source of impairment may be the result of activities regulated under section 404 and section 10 because they involve discharges of dredged or fill material or structures or work in navigable waters, but habitat alterations may also occur as a result of activities not regulated under those two statutes, such as the removal of vegetation from upland riparian areas. Hydrologic modifications mayor may not be regulated under section 404 or section 10.

Not all ofthe Nation's aquatic resources are subject to regulatory jurisdiction under Section 404 of the Clean Water Act. Waters of the United States subject to Section 404 of the Clean Water Act are defined at 33 CFR part 328. Some wetlands are not subject to Clean Water Act jurisdiction because they do not meet the criteria at Part 328. In its decision in Solid Waste County of Northern Cook County v. Us. Army Corps of Engineers, 531 U.S. 159 (2001), the U.S. Supreme Court ruled that Clean Water Act jurisdiction does not apply to isolated, intrastate, non-navigable waters based on their use as habitat for migratory birds.

Tiner (2003) estimated that in some areas of the country, the proportion of wetlands that are geographically isolated, and may not be subject to Clean Water Act jurisdiction is approximately 20 to 50 percent of the wetland area, and there are other areas where more than 50 percent of the wetlands are geographically isolated. Geographically isolated wetlands comprise a substantial proportion of the wetlands found in regions with arid, semi arid, and semi-humid climates, as well as areas with karst topography (Tiner 2003).

However, it is difficult to determine from maps or aerial photographs whether wetlands are hydrologically isolated from other waters, because there may be small surface hydrologic connections that are not included on those maps or detected by those photographs (Tiner 2003). The scope of waters subject to Clean Water Act jurisdiction has also been affected by the U.S. Supreme Court decision in the consolidated cases of Rapanos v. Us. and Carabell

v. Us., but there have been no formal studies to estimate the proportion of wetlands, streams, and other aquatic resources that may have been affected by that decision.

This NWP authorizes discharges of dredged or fill material into all waters of the United States. These waters are included in the marine, estuarine, palustrine, lacustrine, and riverine systems of the Cowardin classification system.

Wetland functions are the biophysical processes that occur within a wetland (King et al.

2000). Wetlands provide many functions, such as habitat for fish and shellfish, habitat for waterfowl and other wildlife, habitat for rare and endangered species, food production, plant production, flood conveyance, flood-peak reduction, flood storage, shoreline stabilization, water supply, ground water recharge, pollutant removal, sediment accretion, and nutrient uptake (NRC 1992).

Functions provided by streams include sediment transport, water transport, transport of nutrients and detritus, habitat for many species of plants and animals (including endangered or threatened species), and maintenance of biodiversity (NRC 1992). Streams also provide hydrologic functions, nutrient cycling functions, food web support, and corridors for movement of aquatic organisms (Allan and Castillo 2007).

Freshwater ecosystems provide services such as water for drinking, household uses, manufacturing, thermoelectric power generation, irrigation, and aquaculture; production of finfish, waterfowl, and shellfish; and non-extractive services, such as flood control, transportation, recreation (e.g., swimming and boating), pollution dilution, hydroelectric generation, wildlife habitat, soil fertilization, and enhancement of property values (Postel and Carpenter 1997).

Marine ecosystems provide a number of ecosystem services, including fish production;

materials cycling (e.g., nitrogen, carbon, oxygen, phosphorous, and sulfur); transformation, detoxification, and sequestration of pollutants and wastes produced by humans; support of ocean-based recreation, tourism, and retirement industries; and coastal land development and valuation, including aesthetics related to living near the ocean (Peterson and Lubchenco 1997).

Activities authorized by this NWP will provide a wide variety of services that are valued by society. For example, linear transportation projects provide routes to transport goods and services. These projects are also used to move people from one location to another. Linear transportation projects provide infrastructure that is essential for sustaining the national economy.

4.0 Environmental Consequences

4.1 General Evaluation Criteria

This document contains a general assessment of the foreseeable effects of the individual activities authorized by this NWP and the anticipated cumulative effects of those activities.

In the assessment of these individual and cumulative effects, the terms and limits of the NWP, pre-construction notification requirements, and the standard NWP general conditions are considered. The supplemental documentation provided by division engineers will address how regional conditions affect the individual and cumulative effects of the NWP.

The following evaluation comprises the NEP A analysis, the public interest review specified in 33 CFR 320.4(a)(1) and (2), and the impact analysis specified in Subparts C through F of the 404(b)(1) Guidelines (40 CFR Part 230).

The issuance of an NWP is based on a general assessment of the effects on public interest and environmental factors that are likely to occur as a result of using this NWP to authorize activities in waters of the United States. As such, this assessment must be speculative or predictive in general terms. Since NWPs authorize activities across the nation, projects eligible for NWP authorization may be constructed in a wide variety of environmental settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated with each activity authorized by an NWP. For example, the NWP that authorizes 25 cubic yard discharges of dredged or fill material into waters of the United States may be used to fulfill a variety of project purposes. Indication that a factor is not relevant to a particular NWP does not necessarily mean that the NWP would never have an effect on that factor, but that it is a factor not readily identified with the authorized activity. Factors may be relevant, but the adverse effects on the aquatic environment are negligible, such as the impacts of a boat ramp on water level fluctuations or flood hazards. Only the reasonably foreseeable direct or indirect effects are included in the environmental assessment for this NWP.

Division and district engineers will impose, as necessary, additional conditions on the NWP authorization or exercise discretionary authority to address locally important factors or to ensure that the authorized activity results in no more than minimal individual and cumulative adverse effects on the aquatic environment. In any case, adverse effects will be controlled by the terms, conditions, and additional provisions of the NWP. For example, Section 7 Endangered Species Act consultation will be required for activities that may affect endangered or threatened species or critical habitat.

4.2 Impact Analysis

This NWP authorizes the construction, expansion, modification, or improvement of linear transportation projects. The acreage limit for this NWP is 112 acre, if the linear transportation project is located in non-tidal waters. Ifthe linear transportation project is located in tidal waters, acreage limit is 113 acre.

Pre-construction notification is required for NWP activities resulting in discharges of dredged or fill material into special aquatic sites or discharges resulting in the loss of greater than 1110 acre of waters ofthe United States. The pre-construction notification requirement allows district engineers to review proposed activities on a case-by-case basis to ensure that the individual and cumulative adverse effects of those activities on the aquatic environment are minimal. If the district engineer determines that the adverse effects of a particular project are more than minimal after considering mitigation, then discretionary authority will be asserted and the applicant will be notified that another form ofDA authorization, such as a regional general permit or individual permit, is required (see 33 CFR 330.4(e) and 330.5).

Additional conditions can be placed on proposed activities on a regional or case-by-case basis to ensure that the activities have minimal individual and cumulative adverse effects on the aquatic environment.