12. Utility Line Activities: In the July 21, 1999, Federal Register notice, we proposed to modify NWP 12 to authorize utility line substations; foundations for overhead utility line towers, poles, and anchors; and permanent access roads for the construction and maintenance of utility lines.
Many commenters supported the proposed modifications, but a few commenters opposed the proposed modifications. Several commenters believe that this NWP will authorize activities with more than minimal adverse effects on the aquatic environment. One commenter said that NWP 12 should have a maximum limit of 2 acres for a single and complete utility line activity and another commenter suggested a 1/3 acre limit. One commenter supported the 1/4 acre PCN threshold and also recommended requiring notification for activities that result in the loss of greater than 100 linear feet of stream bed, with agency coordination for activities that result in the loss of greater than 250 linear feet of stream bed. Another commenter said that the PCN threshold should be 1/3 acre. One commenter requested clarification concerning the emergency authorization of utility line activities.
The terms and conditions of this NWP, including PCN requirements, will ensure that NWP 12 will authorize only activities with minimal individual and cumulative adverse effects on the aquatic environment. We do not agree that an overall acreage limit is appropriate for this NWP, since many of the impacts to waters of the United States caused by the construction and maintenance of utility lines will be temporary. Acreage limits and PCN thresholds for specific activities authorized by this NWP are discussed below. This NWP can be used to authorize the emergency installation, replacement, or repair of utility lines in waters of the United States. Emergency procedures for the Corps regulatory program are discussed in 33 CFR 325.2(e)(4).
One commenter said that this NWP is too restrictive for the installation of underground gas transmission lines. Two commenters stated that this NWP should authorize wireless communication towers. Another commenter suggested that well drilling fluid flowlines should be authorized by this NWP. One commenter said that pipeline maintenance activities should be exempt from permit requirements. A commenter stated that PCNs should be required for all underground utility lines to ensure that the installation of those utility lines does not drain wetlands. Another commenter said that sidecast material from utility line installation should be removed within 30 days. One commenter indicated that utility lines constructed in waters of the United States parallel to streambeds should be limited to 500 feet in length to ensure that those activities result in minimal adverse effects on the aquatic environment.
This NWP authorizes the construction, maintenance, and repair of utility lines, including underground gas transmission lines, that have minimal adverse effects on the aquatic environment. We do not agree that the terms for underground transmission lines are too restrictive. This NWP does not authorize wireless communication towers because these facilities are not utility lines. Well drilling fluid flowlines are not authorized by this NWP, because they are not utility lines. The construction or installation of wireless communication towers or well drilling fluid flowlines in waters of the United States can be authorized by individual permits, regional general permits, or other NWPs. Pipeline maintenance activities can be authorized by this NWP or NWP 3, although some pipeline maintenance activities may be eligible for the Section 404(f) exemption. This NWP contains specific terms to ensure that the installation of utility lines does not drain wetlands. This NWP does not authorize the installation of utility lines that result in french drains. We believe that the 180 day limit is appropriate for temporary sidecasting of excavated material, but division engineers can regionally condition this NWP to reduce this time period, if such a reduction is necessary to ensure that the NWP authorizes only activities with minimal adverse effects. Paragraph (d) of the "Notification" section of this NWP will allow district engineers to review proposed utility lines to be installed in waters of the United States parallel to stream beds and ensure that these activities result in minimal adverse effects on the aquatic environment.
One commenter requested clarification whether a Corps permit is required if the United States Coast Guard does not require a permit under Section 9 of Rivers and Harbors Act. Another commenter said that pipelines are transportation structures.
A Section 10 permit is not required for utility lines constructed over navigable waters of the United States to transport gaseous, liquid, liquifiable, or slurry substances, because these structures are considered bridges which are regulated under Section 9, not Section 10, of the Rivers and Harbors Act. Pipelines constructed over navigable waters may be considered bridges under Section 9 of the Rivers and Harbors Act.
Two commenters supported the inclusion of utility line substations in the proposed modification of this NWP. One commenter said that the acreage limit of utility line substations should be 1/4 acre. Several commenters recommended adding "storage facilities" to paragraph (ii) to authorize these activities with utility line substations. Two commenters requested a definition of the term "substation." One commenter said that this NWP should not authorize the construction of substations in floodplains. Another commenter stated that electric and pumping substations should be sited in uplands.
We have changed the acreage limit for the construction or expansion of utility line substations to 1/2 acre, to ensure that this NWP authorizes only activities with minimal adverse effects on the aquatic environment. Notification is required for discharges of dredged or fill material resulting in the loss of greater than 1/10 acre of non-tidal waters of the United States for the construction or expansion of utility line substations.
We do not agree that storage facilities should be included with utility line substations. These facilities may be authorized by NWPs, regional general permits, or individual permits. The term "utility line substations" includes power line substations, lift stations, pumping stations, meter stations, compressor stations, valve stations, small pipeline platforms, and other facilities integral to the operation of a utility line. There are situations where utility line substations must be located in waters of the United States within 100-year floodplains or other waters of the United States. Utility line substations constructed in waters of the United States within 100-year floodplains must comply with General Condition 26.
One commenter recommended limiting foundations for overhead utility line towers, poles, and anchors to 1 acre or 250 linear foot of stream bed. This commenter also said that losses of waters of the United States resulting from the installation of overhead utility line towers, anchors, and poles should be included with the impacts caused by utility line substations when determining if an activity meets the acreage limits of this NWP.
We do not believe it is necessary to impose an acreage limit on foundations for overhead utility line towers, poles, and anchors, but division engineers can regionally condition this NWP to impose such limits if it is necessary to ensure that the NWP authorizes only activities with minimal adverse effects on the aquatic environment. We do not agree that foundations for overhead utility line towers, poles, and anchors should be included with the acreage limit for utility line substations. For those utility line activities that require notification, district engineers will review PCNs to ensure that these activities result in minimal adverse effects on the aquatic environment.
One commenter objected to the proposed modification to authorize the construction of permanent access roads in waters of the United States. Another commenter asked whether permanent or temporary access roads are authorized by paragraph (iv) of this NWP. One commenter said that the 1 acre limit is too high and recommended a 1/10 acre limit for permanent access roads. Another commenter recommended a 250 linear foot limit on stream bed impacts for the construction of access roads. One commenter asked if the 500 linear foot PCN threshold for permanent access roads constructed above-grade in waters of the United States applies to an entire project or a single crossing.
Permanent access roads are necessary for the operation and maintenance of utility lines and should be authorized by this NWP as part of a single and complete utility line project. Paragraph (iv) of the NWP authorizes only permanent access roads; temporary access roads can be authorized by NWP 33. We have changed the acreage limit for above-grade permanent access roads to 1/2 acre, to ensure that this NWP authorizes activities with minimal adverse effects on the aquatic environment. We do not agree that it is necessary to impose a 250 linear foot limit on stream bed impacts for access roads, since most of the access roads will be constructed perpendicular to streams. The 500 linear foot PCN threshold for access roads applies to each single and complete crossing (see 33 CFR 330.2(i)).
One commenter supported the provision requiring access roads to be constructed with pervious surfaces. Two commenters objected to this requirement. One of these commenters noted that it may not be possible to utilize pervious surfaces, because those materials may not be practicable, stable, or safe in certain situations.
We have deleted the last sentence of paragraph (iv) to allow this NWP to authorize permanent access roads constructed with impervious material. However, to ensure that permanent access roads constructed with impervious material result in minimal adverse effects on the aquatic environment, we have added paragraph (g) to the "Notification" section to require notification when access roads for utility lines are constructed with impervious materials.
One commenter requested clarification whether this NWP authorizes mechanized landclearing necessary to maintain a previously established utility line right-of-way. One commenter said that this NWP should not authorize mechanized landclearing of forested wetlands, unless the acreage and functions of those wetlands are replaced. Several commenters objected to the requirement for mitigation to offset permanent adverse effects to waters of the United States, such as the conversion of forested wetlands to emergent wetlands in permanently maintained utility line right-of-ways. One commenter objected to the language in the NWP that excludes temporary adverse effects due to filling, flooding, excavation, or drainage from the calculation of permanent losses of waters of the United States. One commenter said that mitigation plans should be required with all PCNs. Two commenters supported the Corps position that it does not regulate groundwater flow. Another commenter said that this NWP should be conditioned to prohibit impacts to groundwater.
This NWP authorizes mechanized landclearing that is necessary to maintain an existing utility line right-of-way, provided the cleared area is kept to the minimum necessary and preconstruction contours are maintained as close as possible. District engineers will require mitigation for the permanent conversion of wetland types to ensure that utility line activities will result in minimal adverse effects on the aquatic environment. Impacts to waters of the United States due to temporary filling, flooding, excavation, or drainage should not be considered as permanent losses, because this NWP requires the restoration of temporarily affected waters of the United States. We do not agree that it is necessary to require the submission of mitigation plans with all PCNs, because compensatory mitigation is not required for all utility line activities. We maintain our position that we do not regulate groundwater flows, but district engineers may consider adverse effects to groundwater when reviewing PCNs.
In response to a PCN, district engineers can require special conditions on a case-by-case basis to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the work. The issuance of this NWP, as with any NWP, provides for the use of discretionary authority when valuable or unique aquatic areas may be affected by these activities. This NWP is subject to General Condition 25, which restricts its use in designated critical resource waters. For utility line activities resulting in discharges of dredged or fill material into waters of the United States within 100-year floodplains, General Condition 26 requires the permittee to notify the district engineer and demonstrate that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. NWP 12 is reissued with the modifications discussed above.
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