Appendix_KY_DEP_Section_401.pdf

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

Billing Code 3720-58

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

RIN 0710-AA71

Reissuance of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing 48 of the 49 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing two new NWPs, three new general conditions, and three new definitions.

The effective date for the new and reissued NWPs will be March 19, 2012. These NWPs will expire on March 18, 2017. The NWPs will protect the aquatic environment and the public interest while effectively authorizing activities that have minimal individual and cumulative adverse effects on the aquatic environment.

DATES: The NWPs and general conditions will become effective on March 19, 2012.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street NW, Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by e-mail at david.b.olson@usace.army.mil or access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx

SUPPLEMENTARY INFORMATION:

Executive Summary

The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize certain activities that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The purpose of this regulatory action is to reissue 48 existing NWPs and issue two new NWPs. In addition, three new general conditions and three new definitions will be issued. The NWPs may be issued for a period of no more than five years. Therefore, the Corps must reissue the NWPs every five years to continue to authorize these activities. These 50 NWPs will go into effect on March 19, 2012.

The NWPs authorize activities that have minimal individual and cumulative adverse effects on the aquatic environment. The NWPs authorize a variety of activities, such as aids to

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR navigation, utility lines, bank stabilization activities, road crossings, stream and wetland restoration activities, residential developments, mining activities, commercial shellfish aquaculture activities, and agricultural activities. Some NWP activities may proceed without notifying the Corps, as long as those activities satisfy the terms and conditions of the NWPs.

Other NWP activities cannot proceed until the project proponent has submitted a pre-construction notification to the Corps, and for most NWPs the Corps has 45 days to notify the project proponent whether the activity is authorized by NWP.

Background In the February 16, 2011, issue of the Federal Register (76 FR 9174), the U.S. Army Corps of Engineers (Corps) published its proposal to reissue 48 existing nationwide permits (NWPs), issue two new NWPs, and not reissue one NWP. The Corps also proposed to reissue its general conditions and add two new general conditions.

After evaluating the comments received in response to the February 16, 2011, proposal, we have made a number of changes to the NWPs, general conditions, and definitions to further clarify the permits, general conditions, and definitions, facilitate their administration, and strengthen environmental protection. Examples of improved environmental protection include:

imposing limits on surface coal mining activities authorized by NWP 21; modifying NWP 27 to authorize additional aquatic resource restoration and enhancement activities such as the rehabilitation and enhancement of tidal streams, wetlands, and open waters; and providing flexibility in designing crossings of streams and other waterbodies so that movements of aquatic species can be maintained after taking into account the characteristics of the stream or waterbody and the surrounding landscape (see general condition 2, aquatic life movements). These changes are discussed in the preamble.

The Corps is reissuing 48 existing NWPs, issuing two new NWPs, reissuing 28 existing general conditions, and issuing three new general conditions. The Corps is also reissuing all of the NWP definitions, and adding three new definitions. The Corps is also splitting one existing definition into two definitions as they relate to single and complete projects. The effective date for these NWPs, general conditions, and definitions is March 19, 2012. These NWPs, general conditions, and definitions expire on March 18, 2017.

Grandfather Provision for Expiring NWPs

In accordance with 33 CFR part 330.6(b), activities authorized by the current NWPs issued on March 12, 2007, that have commenced or are under contract to commence by March 18, 2012, will have until March 18, 2013, to complete the activity under the terms and conditions of the current NWPs. Nationwide permit 21 activities that were authorized by the 2007 NWP 21 may be reauthorized without applying the new limits imposed on NWP 21, provided the permittee submits a written request for reauthorization to the district engineer by February 1, 2013, and the district engineer determines that the on-going surface coal mining activity will result in minimal adverse effects on the aquatic environment and notifies the permittee in writing that the activity is authorized under the 2012 NWP 21.

Clean Water Act Section 401 Water Quality Certifications (WQC) and Coastal Zone Management Act (CZMA) Consistency Determinations

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

The NWPs issued today will become effective on March 19, 2012. This Federal Register notice begins the 60-day Clean Water Act Section 401 water quality certification (WQC) and the 90-day Coastal Zone Management Act (CZMA) consistency determination processes.

After the 60-day period, the latest version of any written position taken by a state, Indian tribe, or EPA on its WQC for any of the NWPs will be accepted as the state’s, Indian tribe’s, or EPA’s final position on those NWPs. If the state, Indian tribe, or EPA takes no action by

[INSERT DATE 60 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL

REGISTER], WQC will be considered waived for those NWPs.

After the 90-day period, the latest version of any written position taken by a state on its CZMA consistency determination for any of the NWPs will be accepted as the state’s final position on those NWPs. If the state takes no action by [INSERT DATE 90 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER], CZMA concurrence will be presumed for those NWPs.

While the states, Indian Tribes, and EPA complete their WQC processes and the states complete their CZMA consistency determination processes, the use of an NWP to authorize a discharge into waters of the United States is contingent upon obtaining individual water quality certification or a case-specific WQC waiver. Likewise, the use of an NWP to authorize an activity within a state’s coastal zone, or outside a state’s coastal zone that will affect land or water uses or natural resources of that state’s coastal zone, is contingent upon obtaining an individual CZMA consistency determination, or a case-specific presumption of CZMA concurrence. We are taking this approach to reduce the hardships on the regulated public that would be caused by a substantial gap in NWP coverage if we were to wait until the WQC 60-day period and the CZMA 90-day period ended before these NWPs would become effective.

Discussion of Public Comments

I. Overview

In response to the February 16, 2011, Federal Register notice, we received more than 26,600 comment letters, of which approximately 26,300 were form letters pertaining to NWP 21.

The non-form letters we received contained a few thousand comments on various components of the NWPs and NWP Program implementation. We reviewed and fully considered all comments received in response to the proposed rule.

General comments

Many commenters expressed support for the proposed permits. Some commenters stated that the changes are a step forward in improving consistency in the NWP program. Many commenters endorsed the fundamentals of the NWP program, stating that the permits could have a beneficial impact to conducting infrastructure and mining projects important to the country.

Some stated that permitting delays and an increase in individual permits would result without the NWP program, creating a backlog for the Corps and resource agencies, while placing a burden on regulated industries. Another commenter urged the Corps to increase flexibility to allow for project modifications when needed due to unanticipated challenges encountered during construction. Some commenters stated that further streamlining is needed for increased efficiency and reducing administrative burden while maintaining a high level of environmental

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR protection. One commenter said the Corps should maximize rather than limit use of the NWP program in light of the current economic situation, Federal budget cuts, and presidential efforts to streamline regulations. Another commenter was pleased to see the Corps hold the line against further restrictions on the NWP program. Many commenters emphasized that a timely, efficient, and consistent permitting system is critical to the nation’s economy.

The NWP Program provides flexibility to readily authorize project modifications if the NWP activity cannot be constructed in accordance with the approved plans, as long as any modifications would still meet the terms and conditions of applicable NWP(s) and qualify for NWP authorization. In cases where the district engineer has issued an NWP verification letter, the permittee should contact the district as soon as he or she finds that the activity cannot be constructed in accordance with the approved plans. The district engineer will then determine if authorization by NWP is still appropriate. If it is not, then the permittee will be instructed on the most appropriate mechanism for permitting the modified activity.

We believe the final permits issued today maintain a proper balance between efficiently authorizing activities with minimal individual and cumulative adverse environmental effects and protecting the aquatic environment. The NWPs provide a streamlined authorization process that is consistent with the principles of Executive Order 13563, Improving Regulation and Regulatory Review.

In contrast, many other commenters expressed general opposition to the proposal, and said that the proposed rule weakens protection for waters and should be withdrawn. Some commenters said that the proposal threatens to undermine the important and statutorily mandated function of the NWPs and the Clean Water Act, and is contrary to Congressional intent. One commenter expressed opposition to the issuance of the NWPs, stating that they will result in an increase in the number of activities that can be permitted and a reduction in the opportunity for public review and comment. Many of these commenters objected to the goals of “streamlining” or “improving regulatory efficiency,” and they said that the focus of the NWPs should be on compliance with the Clean Water Act. Another commenter was concerned that the proposed NWPs do not support the “no overall net loss” goal for wetlands, and that the Corps analysis predicts that the NWPs will result in a decrease of waters of the United States, including wetlands.

As discussed below, those NWPs that authorize discharges of dredged or fill material into waters of the United States comply with the Clean Water Act and the environmental criteria provided in its implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230. The NWPs authorize minor activities that result in minimal adverse effects on the aquatic environment that would likely generate little, if any, public comment if they were evaluated through the standard permit process with a full public notice. Through the adoption of Section 404(e) of the Clean Water Act in 1977, Congress approved the use of general permits as an important tool to keep the Corps Regulatory Program manageable from a resources and manpower perspective, while protecting the aquatic environment. The Corps first adopted the concept of general permits in its final rule published on July 25, 1975 (see 40 FR 31321). The NWP program also continues to support the national goal of “no overall net loss” for wetlands, and wetlands compensatory mitigation will be required when appropriate and practicable to offset losses of wetland area and functions. The “no overall net loss” goal applies only to wetlands, and for other waters of the United States the goal is to avoid and minimize losses of those waters and to provide compensatory mitigation to offset those losses if it is appropriate and

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR practicable to do so. Stream mitigation is becoming more commonplace as the science and practical applications become further developed.

Some commenters stated that the NWPs should require consideration of less damaging alternatives or demonstrate that NWP activities result in minimal adverse environmental effects.

One commenter said that there is not sufficient emphasis on avoidance of impacts to waters of the United States. Another commenter objected to using NWPs to expand existing projects, stating that it discourages avoidance and minimization.

Those NWPs that authorize discharges of dredged or fill material into waters of the United States comply with the provisions of the 404(b)(1) Guidelines that address the issuance of general permits (see 40 CFR 230.7). A decision document is prepared for each NWP to provide information to show that the NWP will authorize only those activities that result in minimal adverse effects on the aquatic environment and other public interest review factors.

Supplemental decision documents are prepared at a regional level to support the decision on whether to add regional conditions to an NWP or suspend or revoke the use of that NWP in a specific waterbody, category of waters, or geographic area to ensure that only activities that result in minimal adverse effects on the aquatic environment and other public interest review factors are authorized by the NWP. In response to a pre-construction notification or a request to verify that an activity is authorized by NWP, a district engineer may add activity-specific conditions to the NWP authorization or suspend or revoke the NWP authorization if he or she determines that the proposed activity would result in more than minimal adverse effects.

Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site. The use of NWPs to authorize the expansion of existing projects does not discourage avoidance and minimization because this general condition applies equally to all NWP authorizations, including those that authorize expansion of existing projects. The consideration of practicable alternatives in accordance with 40 CFR 230.10(a) does not apply directly to discharges of dredged or fill material into waters of the United States authorized by general permits (see 40 CFR 230.7(b)(1)).

Compliance with Section 404(e) of the Clean Water Act

Several commenters said that the proposed NWPs are contrary to the Clean Water Act and violate Section 404(e) of that Act. Many commenters asserted that the NWPs result in more than minimal adverse effects on the aquatic environment, individually and cumulatively. These commenters stated that the NWPs do not protect vitally important functions of wetlands and streams, and that the proposal does not satisfy the Corps legal obligation to limit general permits to activities that cause minimal adverse impacts, individually and cumulatively. They also said the Corps lacks the data to show that the effects of the authorized activities are in fact minimal.

Some commenters expressed concern regarding the potential overuse of these permits without the inclusion of acreage, linear feet, watershed or regional limitations. Another commenter said that the NWPs fail to describe similarly covered activities in precise terms.

The Corps disagrees with these comments. The NWPs comply with the Clean Water Act and the environmental criteria provided in its implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230. Section 404(e) of the Clean Water Act states that the Chief of Engineers may issue, after publishing a notice and providing an opportunity a public hearing, general permits on a nationwide basis for any category of activities involving discharges of dredged or

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR fill material into waters of the United States, if it is determined that the activities in each category are similar in nature and result in minimal individual and cumulative adverse environmental effects. The issuance of the NWPs is consistent with these requirements and therefore complies with the intent of the Clean Water Act. As discussed above, national decision documents and supplemental decision documents are prepared to demonstrate that an NWP will authorize only those activities that have minimal individual and cumulative adverse effects on the aquatic environment and other public interest review factors. The decision documents use available data and other information to support their conclusions.

Where appropriate and necessary, certain NWPs have acreage, linear foot, or cubic yard limits, or combinations of those limits, to ensure that authorized activities result in minimal individual and cumulative adverse effects on the aquatic environment. Specifically, NWPs have acreage limitations, NWPs have linear foot limitations, and NWPs have cubic yard limitations.

Many other NWPs have qualitative limitations in the form of specific activities or situations that are not authorized, or for which a PCN is required to allow the Corps to ensure on a case-by-case basis that the adverse effects on the aquatic environment of the project are truly minimal. A few NWPs have no explicit limits, but this is limited to those that authorize activities that provide benefits to the aquatic environment (e.g., NWP 27, which authorizes aquatic habitat restoration, establishment, and enhancement activities, and NWP 41, which authorizes activities for reshaping drainage ditches to improve water quality), or those for which the nature of the authorized activity inherently ensures that effects will be minimal (e.g., NWP 10, which authorizes non-commercial, single boat, mooring buoys). Division engineers may impose regional conditions on the NWPs to add acreage, linear foot, or cubic yard limits, or reduce those limits when the NWPs have specified limits in their terms and conditions, to ensure those NWPs authorize only those activities that result in minimal adverse effects on the aquatic environment.

The NWPs comply with the requirement in Section 404(e) of the Clean Water Act to authorize categories of activities that are similar in nature. Each NWP authorizes a specific category of activities, which may be broadly defined for some NWPs to keep the NWP program manageable. The Act does not require that activities authorized by an NWP be identical, only that they be similar in nature. The permits meet this requirement and are consistent with the Corps’ longstanding practice regarding the appropriate level of detail with which to specify what constitutes activities that are similar in nature.

Compliance with the Section 404(b)(1) Guidelines

Several commenters said that the NWPs do not comply with the 404(b)(1) Guidelines.

One commenter said that the Corps has no factual basis to conclude that significant degradation of waters of the United States has not occurred, which is required to be in compliance with the Guidelines. This commenter recommended withdrawing the NWPs or replacing them with state program general permits. One commenter stated that the NWPs do not comply with the 404(b)(1) Guidelines because they authorize discharges into special aquatic sites.

When we issue the NWPs, we fully comply with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of general permits under Section 404 of the Clean Water Act. For each NWP that authorizes discharges of dredged or fill material into waters of the United States, the decision document contains a 404(b)(1) Guidelines analysis.

Section 230.7(b) of the 404(b)(1) Guidelines requires a “written evaluation of the potential individual and cumulative impacts of the categories of activities to be regulated under the general

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR permit.” Since the required evaluation must be completed before the NWP is issued, the analysis is predictive in nature. The estimates of potential individual and cumulative impacts, as well as the projected compensatory mitigation that will be required, are based on the best available data from the Corps district offices, including the past use of NWPs. In our decision documents, we also used readily available national data on the status of wetlands and other aquatic habitats in the United States, and the foreseeable impacts of the NWPs on those waters.

The process for issuing state programmatic general permits is similar to the process for issuing NWPs, including the use of information to support decisions. The 404(b)(1) Guidelines analysis for state programmatic general permits is also predictive. Given those similarities, compliance with the 404(b)(1) Guidelines is not different for state programmatic general permits versus NWPs.

Despite the fact that many NWPs authorize discharges of dredged or fill material into special aquatic sites, they are still in compliance with the 404(b)(1) Guidelines. Section 230.7 of the 404(b)(1) Guidelines does not prohibit the use of NWPs to authorize discharges of dredged or fill material into special aquatic sites. Many NWPs contain additional provisions to protect special aquatic sites. For example, several NWPs specifically require pre-construction notification for proposed discharges of dredged or fill material into special aquatic sites (e.g., NWP 13 for bank stabilization activities, NWP 14 for linear transportation projects, NWP 18 for minor discharges). As another example, NWP 19 for minor dredging activities, does not authorize dredging in coral reefs or dredging activities that cause siltation that degrades coral reefs. General condition 22, designated critical resource waters, applies the prohibitions in paragraph (a) and the notification requirement in paragraph (b) to wetlands (a special aquatic site) adjacent to critical resource waters.

Compliance with the National Environmental Policy Act

Three commenters stated that the NWPs do not satisfy the requirements of the National Environmental Policy Act (NEPA), as they do not adequately consider indirect and cumulative effects on global warming. One commenter said that degradation in air quality from burning coal from mining projects must be addressed in an environmental impact statement, and that the Corps has to address the implications of climate change on aquatic ecosystems. Another commenter stated that the scientific consensus on the impacts of climate change has to be considered in the renewal of the NWPs. One commenter said the NWPs should take into account ongoing federal efforts to address the effects of climate change through federal programs. These federal programs address mitigation of climate change (e.g., through reduction of greenhouse gas emissions) and adaptation to climate change (e.g., by adjustments made to reduce vulnerability resulting from changing climate).

Although the Council on Environmental Quality has made available draft guidance on the consideration of the effects of climate change and greenhouse gas emissions, and sought public comment on that draft guidance, they have not issued any final guidance specifically on how to consider, in NEPA documents, the indirect and cumulative effects Federal agency actions have on climate change. In the Council on Environmental Quality’s October 2011 Progress Report of the Interagency Climate Change Adaptation Task Force entitled “Federal Actions for a Climate Resilient Nation” adaptation is defined as “adjustment in natural or human systems to a new or changing environment that exploits beneficial opportunities or moderates negative effects.”

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

A major cause of climate change is emissions of greenhouse gases. Activities authorized by NWPs have little direct, indirect, or cumulative effects on climate change and the emission of greenhouse gases. There may be brief emissions of greenhouse gases during the construction of activities authorized by NWP, specifically discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States. Any greenhouse gas emissions that occur other than as a result of the discharge of dredged or fill materials are outside of the Corps NEPA scope of analysis because the Corps does not have the legal authority to control those emissions. The degradation of air quality caused by burning coal is not the result of a discharge of dredged or fill material and therefore is outside the Corps legal authority. . The issuance of a Corps permit is designed to ensure that any discharges of dredged or fill material into waters of the United States associated with such mining comply with the Clean Water Act.

A Corps permit does not authorize coal mining per se, and therefore the effects of coal mining that do not result from a discharge of dredge or fill material to waters of the United States generally are beyond the Corps NEPA scope of analysis.

The effects of climate change on aquatic ecosystems are a much broader issue than the effects on the aquatic environment caused by activities authorized by NWPs. The effects of climate change on hydrology and extreme events are difficult to project. The effects will vary by location and the sensitivity of resources to changes in hydrology and extreme events. The timeframe used to project hydrologic changes will also affect the evaluation. For activities with minimal adverse effects on the aquatic environment that are eligible for authorization by the NWPs, the Corps believes that any necessary adaptation to climate change is appropriately addressed through land use planning and zoning, which is the primary responsibility of state, tribal, and local governments. Activities authorized by NWPs may be part of state, tribal, or local adaptation efforts to mitigate the effects of climate change.

On October 1, 2011, the Corps issued updated guidance on sea level change considerations for Civil Works Program (Engineer Circular 1165-2-211). The current Engineer Circular applies to Corps Civil Works activities, but not to the Regulatory Program. As stated on page 25 of its “Climate Change Adaptation Plan and Report 2011” (available at:

http://www.corpsclimate.us/adaptationpolicy.cfm ), the Corps expects to make larger changes in the next update of the Engineer Circular, “and the regulatory program will be added following appropriate consultation.”

Compliance with the Endangered Species Act One commenter acknowledged the Corps 2007 efforts to pursue programmatic consultation for the NWP program with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to ensure compliance with the Endangered Species Act (ESA), stating that failure to complete consultation violates the ESA, as well as Section 404(e) of the Clean Water Act. Two commenters stated that the Corps has a requirement to complete these consultations prior to the issuance of the NWPs.

We have reinitiated programmatic Section 7 Endangered Species Act consultation for the NWPs. If this consultation is not completed prior to the effective date of these NWPs, district engineers will consult, as necessary on a case-by-case basis with the U.S. Fish and Wildlife Service and National Marine Fisheries Service in accordance with general condition 18, Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR endangered species. Division engineers may also impose regional conditions on any of the NWPs to facilitate compliance with the requirements of the Endangered Species Act.

Compliance with Section 304(d) of the National Marine Sanctuaries Act

One commenter stated that the proposed NWPs must comply with Section 304(d) of the National Marine Sanctuaries Act (NMSA). Section 304(d)(1))(A) of the NMSA states that “Federal agency actions internal or external to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the Secretary.” The regulations for implementing section 304(d) are found at 15 CFR 922.187, and those regulations state that the Federal agency consultation should be conducted with the Director of the marine sanctuary. The consultation may be conducted with Endangered Species Act section 7 consultation.

District engineers that have NOAA-designated marine sanctuaries within their geographic area of responsibility should consult with the Director of the marine sanctuary to determine which NWP activities require activity-specific consultation under Section 304(d) of the NMSA. Regional conditions should be adopted where necessary to ensure compliance with the requirements of section 304(d).

New Nationwide Permits

We received several suggestions for the establishment of new NWPs for various activities. Two commenters suggested developing an NWP to authorize activities associated with linear gas facility infrastructure based on the Federal Energy Regulatory Commission’s (FERC) blanket certification program that would allow the industry to undertake routine activities without the need to obtain a case-specific authorization from FERC for each project. One commenter recommended issuing an NWP to authorize activities associated with controlling nuisance and exotic plant species and another NWP to authorize activities for innovative mitigation proposals. One commenter said that an NWP should be developed to authorize the beneficial reuse of dredged material, for up to 10,000 cubic yards of material. Another commenter recommended adding an NWP to authorize discharges of dredged or fill material to raise dam elevations to increase pool elevations of public water supply reservoirs to increase potable water supplies and wetlands.

We believe that existing NWPs such as NWPs 12, 3, and 39 are sufficient to provide general permit authorization for gas utility lines and associated infrastructure. Discharges of dredged or fill material into waters of the United States or work in navigable waters of the United States associated with the removal of nuisance or exotic plant species may be authorized by NWP 27, aquatic habitat restoration, establishment, and enhancement activities. Innovative mitigation proposals may also be authorized by NWP 27, as long as those activities result in net increases in aquatic resource functions and services and satisfy the other terms and conditions of that NWP. We believe that the beneficial reuse of dredged material, especially at such large quantities, is more appropriately evaluated through the individual permit process, to more thoroughly consider effects on existing aquatic resource functions already being provided in the waters where the reused dredged material might be placed.

Waivers of Certain NWP Limits

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

We proposed to modify the language concerning the use of waivers in NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be granted only after the district engineer makes a written determination concluding that the discharge will result in minimal adverse effects and sets forth the basis for that determination. We also proposed to apply the modified waiver language to NWPs 21, 44, and 50, as well as to the two proposed new NWPs. Some commenters supported the proposed modifications.

Many commenters said the proposed changes would allow district engineers too much discretion, and there should be no waivers of NWP limits. One commenter stated there was not a need for waivers because many of the NWPs already require pre-construction notification and the changes make the NWPs more difficult to obtain. The commenter said the waivers create an additional paperwork burden and provide no environmental benefits. Many commenters objected to the proposed waivers, stating that they imply that ephemeral and intermittent streams are considered lower in their function and value to the aquatic environment and are provided less protection than perennial streams. These commenters discussed the importance of ephemeral and intermittent streams to overall watershed integrity and to water quality and stated there is no scientific evidence to support the position that the use of waivers will result in only minimal impacts. One commenter said that before a waiver is issued, there should be analysis of cumulative effects to the watershed. Several commenters stated that the use of waivers in states with arid and semi-arid ecosystems does not properly take into account the importance of headwater streams in these ecosystems and could result in more than minimal individual and cumulative effects.

The basic requirement for general permits, including NWPs, is that they may only authorize activities that result in minimal individual and cumulative adverse effects on the aquatic environment. Section 404(e) of the Clean Water Act and the regulations relevant to the issuance of the NWPs (e.g., 33 CFR part 330 and 40 CFR 230.7) do not mandate a single approach to satisfying that basic requirement. The terms and conditions of the NWPs, including acreage, linear foot, and cubic yard limits and allowing the use of certain NWPs in specific types of waters, are intended to limit NWPs activities so that they do not result in more than minimal adverse effects on the aquatic environment. Division engineers have the authority to impose regional conditions on NWPs to restrict or prohibit their use in certain waters or other geographic areas. Another important tool is pre-construction notification, which provides for district engineers to review proposed NWP activities to ensure that they will result in minimal adverse effects. In response to a pre-construction notification, a district engineer may add activity-specific conditions to the NWP authorization to further minimize adverse effects to the aquatic environment. For those NWPs that allow district engineers review pre-construction notifications and issue written waivers of certain limits, such as the 300 linear foot limit for the loss of intermittent and ephemeral stream bed, the NWP activity must still satisfy the statutory and regulatory requirements for general permits. The waiver process does not make the NWP process more difficult. Instead, it provides an important tool for districts to efficiently authorize activities with minimal adverse effects on the aquatic environment after making a written determination that the activity satisfies the NWP requirements.

We recognize the importance of intermittent and ephemeral streams and the waiver process for certain NWPs requires district engineers to make activity-specific evaluations of the intermittent or ephemeral streams proposed to be filled or excavated before deciding whether to waive the 300 linear foot limit. To issue a waiver, the district engineer must make, and

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR document, a minimal adverse effects determination, which as discussed above, is consistent with the statutory and regulatory requirements for general permits. As part of the analysis, the district engineer must consider the individual and cumulative adverse effects on the aquatic environment on a watershed basis, or for another appropriate geographic area, such as an ecoregion. For those activities in arid and semi-arid regions, district engineers will use local criteria as well as their knowledge of arid and semi-arid ecosystems to make decisions on pre-construction notifications for proposed activities that might be eligible for waivers. The basis for any waiver, including appropriate consideration of individual and cumulative effects, will be documented in the district engineer’s written determination.

Several commenters noted concern with the 45-day pre-construction notification review period to provide a decision whether to grant or deny the waiver. One commenter noted the applicant can proceed without authorization if the Corps fails to respond to a waiver request within the 45 day time limit. Several commenters expressed concern with the additional time and the expense that could be incurred by the applicant who must wait for the waiver decision and written determination.

We believe that the 45-day pre-construction notification review period is sufficient for district engineers to make their written determinations on whether to issue waivers of the applicable limits for certain NWPs. The text of the NWPs that allow waivers of certain limits clearly states that the waivers must be made by the district engineer in writing. In addition, paragraph (a)(2) of general condition 31, pre-construction notification, says that if a proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin that activity until the district engineer issues the waiver. The 45-day pre-construction notification review period still applies to pre-construction notifications that involve requests to waive specific limits of an NWP, but the project proponent may not proceed with the NWP activity if a written waiver is needed and the district engineer did not provide a written waiver by the time the 45-day review period ends. The Corps will make every effort to act on waiver requests within the 45-day review period. If a prospective permittee is concerned that a written waiver will not be issued within the 45-day pre-construction notification review period, then he or she has the option of modifying the proposed activity so that it does not exceed any specified limit of the applicable NWP and does not require a written waiver.

Many commenters said that specific criteria should be applied to the waiver process to ensure proposed activities result in minimal individual or cumulative adverse effects on the aquatic environment. One commenter stated that the waivers provide little incentive to minimize impacts. Another commenter said that water quality certification cannot be issued for NWPs that have limits that can be waived by district engineers because the state cannot certify that those activities meet state water quality standards. One commenter said that when waivers are issued by district engineers, the district engineer must include a fact-specific basis to support his or her finding.

The criteria that are to be applied to requested waivers of specified limits for certain NWPs are the same general criteria that are to be used to make any minimal adverse effects determination for the NWPs. Criteria that are to be used to make minimal adverse effects determinations are provided in paragraph (1) of Section D, District Engineer’s Decision. The waivers still provide incentives to minimize impacts because the NWP authorization threshold (i.e., activities must result in minimal individual and cumulative adverse effects on the aquatic environment) is lower than the authorization threshold for individual permits (e.g., the proposed

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR activity is not contrary to the public interest and, if it involves discharges of dredged or fill material into waters of the United States, it complies with the 404(b)(1) Guidelines). In other words, a waiver cannot be granted if the activity does not meet the minimal effects threshold, and applicant cannot proceed without the Corps’ written determination. Applicants who submit waiver requests run the risk that the waiver will be denied, and valuable time will be lost in obtaining Department of the Army authorization. Thus, it is in the applicant’s interest to modify the proposed activity if possible to avoid exceeding a threshold that requires a waiver, and especially to avoid submitting waiver requests for projects that will in fact have more than minimal adverse effects. States can issue water quality certifications for NWPs based on the specified acreage, linear foot, or cubic yard limits, and require individual water quality certifications for losses of waters of the United States that exceed the specified limits and must be waived in writing by district engineers. The written waiver determinations prepared by the district engineer have to be activity-specific, and explain the factual basis of the waiver.

Several commenters said that the additional information required for a request for a waiver and the requirement to use of a functional assessment method that is available and practicable would impose a significant documentation obligation on Corps staff.

The NWPs do not impose additional information requirements for requests for waivers of specific limits of NWPs. In addition, there is no requirement to use functional assessments to make decisions on waiver requests. The sentence in paragraph (1) of Section D, District Engineer’s Decision, on the use of functional assessments to make minimal effects determinations, states that those methods “may” be used if they are available and practicable to use. However, the Corps does agree that there must be a factual basis for the waiver (which may entail the use of a functional assessment methodology, among other possible approaches) and documenting this does impose an additional obligation on the Corps. Applicants should provide the district engineer as much factual information as possible to support the waiver request and facilitate the district engineer’s determination.

Several commenters supported the proposed changes requiring agency coordination and a written decision. Several commenters said that all appropriate state and Federal resource agencies should be provided an opportunity to comment on requests for waivers. One commenter stated there is no need for additional agency coordination unless specific resource issues are identified, such as compliance with the Endangered Species Act or the National Historic Preservation Act.

We have modified the proposed provision requiring agency coordination for pre-construction notifications involving losses of greater than 1,000 linear feet of intermittent and ephemeral stream bed, to require agency coordination for all pre-construction notifications requesting a waiver of the 300 linear foot limit for filling or excavating intermittent or ephemeral streams (see paragraph (d)(2) of general condition 31, pre-construction notification). Under this agency coordination process, district engineers will solicit comments from the agencies to assist in making the written minimal adverse effects determination necessary for a waiver of the 300 linear foot limit to take effect. Compliance with the Endangered Species Act and the National Historic Preservation Act is addressed by general conditions 18 and 20, respectively.

One commenter said that the loss of stream bed should be defined and the 300 linear foot limit should be reduced to 150 linear feet of loss of stream bed for those NWPs. Another commenter suggested reducing the linear foot limit for loss of stream bed to 50 linear feet. One commenter stated that the 300 linear foot limit should not apply to ephemeral streams. One

Disclaimer: The Corps is submitting this final rule for publication in the Federal Register. While we have taken steps to ensure the accuracy of this document, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, which will be available on the U.S. Government Printing Office’s web site at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR commenter said that waivers should be allowed for losses of perennial streams if the adverse effects are determined to be minimal and the perennial stream is limited in its aquatic function.

The loss of stream bed is defined in “loss of waters of the United States” as the linear feet of stream bed that is filled or excavated. We believe the 300 linear foot limit is appropriate to ensure that losses of stream beds result in minimal adverse effects on the aquatic environment.

Division engineers may add regional conditions to an NWP to reduce the linear foot limit to an amount less than 300 linear feet. The 300 linear foot limit should not be waived for losses of perennial streams because they function differently than intermittent and ephemeral streams, and we believe it will generally not be the case that losses of more than 300 linear feet of a perennial stream would constitute a minimal adverse effect. We believe it would not be a good use of Corps or applicant resources to allow waiver requests for perennial streams on the remote chance that the adverse effects of such an activity would be found to be minimal.