1. Navigation: The Corps proposed no changes to this condition. There were no comments received on this condition. This condition is adopted without change.
2. Proper Maintenance: The Corps proposed no changes to this condition. Two commenters suggested adding the word "facilities," regarding those activities that are required to be maintained. The Corps authorizes maintenance of structures or fill within its jurisdiction under sections 10 and/or 404. We do not regulate the maintenance of facilities built on the structure or fill. For example, if a business facility (building) on the upland is not "maintained," while the barge loading dock is properly maintained, the Corps would not take action regarding maintenance of the building. To avoid any confusion, the Corps has not added "facilities" to this condition. This condition is adopted without change.
3. Erosion and Siltation: The Corps proposed no changes to this condition. Several commenters suggested including state and local erosion and sediment control laws in the General Conditions. Corps permits do not override or obviate the need to comply with state and local erosion and siltation control laws. Additionally, the Corps has no authority to enforce state and local laws. Therefore, the Corps believes it is unnecessary and inappropriate to include state and local laws. This condition is adopted without change.
4. Aquatic Life Movement: The Corps proposed no changes to this condition. A few commenters indicated that projects authorized under an NWP that substantially disrupts aquatic life movements would not satisfy minimal impact criteria and should be considered only through individual permitting procedures. With the current wording of this condition, if a project proposed for an NWP does substantially disrupt aquatic life movement, this general condition is not met and the project cannot be authorized under a nationwide permit. Additionally, it was requested that the phrase "unless the activity's primary purpose is to impound water" be deleted. We believe there are impoundment projects which would substantially disrupt the movement of specific individuals of aquatic life, but which would not adversely affect the populations of the species nor have more than minimal impacts on the aquatic environment. This condition is adopted without change.
5. Equipment: One commenter suggested adding to this condition that all equipment be stored in uplands to the extent practicable. We believe this condition is sufficiently clear as stated and applies only to equipment "working in wetlands". Storage of equipment in wetlands is not addressed because it is not authorized. This condition is adopted without change.
6. Regional and Case-by-Case Conditions: The Corps proposed no changes to this condition. There were no comments received on this condition. We have added a statement that such conditions will also include those imposed by states or tribes under Section 401, which clarifies the current practice.
7. Wild and Scenic Rivers: We proposed to allow the use of NWPs in a component of the National Wild and Scenic Rivers system after coordination with the managing agency has resulted in a determination that the project will not adversely affect the status of the river. Most comments supported the proposed change. No objections to the proposed change were received. Several commenters requested that we add "U.S. Fish and Wildlife Service" after the "e.g." in the last line because they administer 2 rivers in the lower 48 states and 7 rivers in Alaska. We will add this to the nationwide permit condition. Comments were received requesting the addition of the following statement:
This has no effect on procedures established to notify river management and study agencies of pending applications for permits, including conditions negotiated for General Permits by the Corps and those agencies. The proposed activity shall not begin until the applicant has been notified by the District Engineer that the requirements of the Wild and Scenic Rivers Act have been met.
None of the nationwide permits or conditions override or obviate the need for any other Federal agency's requirements for permits or coordination. The Federal agency responsible for managing the affected waterway must determine whether all requirements of the Wild and Scenic Rivers Act have been met. The applicant may make all required coordination with the appropriate agency without involving the Corps of Engineers if there is no notification requirement for the nationwide permit authorizing the proposed project. If the responsible Federal agency determines the project, as proposed, does not comply with the Wild and Scenic Rivers Act, individual processing of the application is required. A comment was also received requesting that the Federal management agency be required to coordinate with the applicable state resource agency on projects proposed for authorization by nationwide permit in Wild and Scenic River areas or study areas and that any state permits required for a proposed project must be issued before the Corps provides authorization by a nationwide permit. The responsible Federal agency is required to complete all coordination of activities as specified in their regulations. It is not appropriate for the Corps to instruct these agencies regarding their program requirements. This condition is adopted as proposed with the inclusion of the U.S. Fish and Wildlife as a Federal management agency.
8. Tribal Rights: The Corps proposed no changes to this condition. One commenter requested inclusion of language to protect cultural resources, including those protected by the Native American Graves and Repatriation Act, in addition to tribal rights. The Native American Graves and Repatriation Act does not apply directly to the Corps regulatory program. This law is applicable to federal agencies conducting work on federal lands but does not apply to private citizens conducting work on private lands. However, many Native American cultural resources are protected by tribal rights and therefore have been, and will continue to be, considered under this condition. This condition is adopted without change.
9. Water Quality Certification: The Corps proposed no changes to this condition. One commenter suggested that section 401 water quality certification and the section 404 authorization procedure should be combined for Nationwide Permit 26. If the appropriate State agency issues or waivers section 401 water quality certification for any Nationwide Permit, the authorization process has been effectively combined. The Clean Water Act specifically separates these authorizations so that States may place more stringent controls on projects to reduce water quality impacts as perceived by the State and not limit the review process to the Federal perspective. This condition is adopted without change.
10. Coastal Zone Management: The Corps proposed no changes to this condition. A few commenters indicated that the current announcement process for Nationwide Permits did not follow Federal consistency procedures and was not in compliance with Coastal Zone Management requirements. One commenter suggested conditions that would allow concurrence on consistency determinations and indicated that the Nationwide Permits should be revoked for a State where such conditions for Coastal Zone Management are not present. Many commenters stated that determination of inconsistency with Coastal Zone Management should invalidate a permit; and that a requirement for individual reviews should not be adopted. If a Coastal Zone Management concurrence determination is not provided for a specific nationwide permit, the project may not proceed until and individual CZM consistency determination has been received for the specific proposed project. The Corps decision that the project will have minimal impact is not affected. However, the agency responsible for the concurrence determination will review each project on a case-by-case basis. If the project specific concurrence determination is denied, the project may not proceed and the NWP is denied without prejudice.
One commenter believed that a Coastal Zone Management concurrence determination should not apply to flood control maintenance activities more than 100 feet upstream of the designated Coastal Zone. The commenter stated that the project is outside the designated coastal zone, this condition does not apply. The Corps must determine whether or not the impacts of a project would affect a state's coastal zone. If project impacts would affect the States coastal zone, than a consistency concurrence is required. This condition is adopted without change.
11. Endangered Species: Although no changes to this condition were proposed, we have made the change of adding language specific to the take of endangered species as discussed below. Several commenters stated that the Corps must determine compliance with section 7 of the Endangered Species Act and that the applicant will not have sufficient knowledge to make such a determination. These commenters assert that by delegating the section 7 ESA responsibility, the Corps NWP program is not in compliance. A few commenters requested that the endangered species condition not apply to species "proposed for listing". Several commenters requested that a public notice be issued for all proposals to obtain public input and environmental review, or that a universal PCN should be shared with resource agencies. A few commenters were concerned that section 7 has never been implemented under the NWP process and that NMFS and USFWS should be consulted prior to final action. A few commenters recommended that the Corps clarify that authorization of a project by an NWP does not authorize the taking of an endangered or threatened species. We will add a statement to this condition to clarify this issue.
Issuing a public notice or sharing universal PCN's with resource agencies for input on all proposals would be unduly burdensome to the Corps and the regulated public, and would not necessarily enhance protection of endangered species. The Corps believes that the procedures at 33 CFR 330.1(e) and this condition ensure compliance with the Endangered Species Act (See general discussion at the beginning of the preamble). Finally, the Corps does conduct section 7 consultations, on both standard individual permits and nationwide permits, to ensure ESA compliance and, as stated above, we are entering into formal programmatic section 7 consultation for the NWP program. The inclusion of species "proposed for listing" is identified under the Endangered Species Act and is used in that context. This condition is adopted as discussed above.
12. Historic Properties: The Corps proposed no changes to this condition. Several commenters do not believe this condition ensures compliance with section 106 of the National Historic Preservation Act (NHPA) or its implementing regulation (36 CFR part 800). These commenters encourage development of a process which will pre-identify and evaluate historic properties and cultural resources. Some commenters suggested limiting this condition to those activities which may "adversely" affect historic properties. We believe that the Corps procedures outlined in this condition comply with the requirements at 33 CFR 330.4(g) and at 33 CFR part 325, appendix C for protection of historic properties, which implements 36 CFR part 800, and fully satisfy the requirements of the NHPA. Furthermore, our experience with authorizing activities by nationwide permit supports our position. We do not believe an additional or revised process is necessary. To change the condition to reduce the threshold for initiating the historic property process from "may affect" to "may adversly affect" would not be appropriate or in compliance with Corps regulations. The "may affect" threshold provides for a process to determine the affect or no affect on historic properties. The "not adversely affect" determination would be decided during the process. If during that process a determination is made that the activity will not adversly affect then the project could be authorized by the NWP. This condition is adopted without change.
13. Notification: We proposed several changes to this condition. In summary, we proposed to: (1) Contact the agencies on behalf of the applicant, (2) discontinue PCN coordination with the agencies on NWPs 5, 7, 13, 17, 18, and 34, but allow Regional Directors or Administrators to request coordination, (3) increase the notification time period for NWP 26 from 30 to 45 days, and (4) notify the agencies on NWP 29 and proposed NWP D (now NWP 31). Many commenters believe that notifying the agencies is not necessary, many others believe it is necessary. Some commenters like the proposed notification reductions, while others expressed concern. A number of commenters believe that there should be no notification requirements at all. The primary reasons given were that it would cause permit delays and that it was unnecessarily burdensome to the regulated public. Many other commenters believe there should be notifications. The reason for notifications are to assure minimal impacts, and to ensure compliance with the National Historic Preservation Act and the Endangered Species Act. We believe that although comments from the agencies are often helpful in the permit evaluation, the value added to the Corps decision for NWPs 5, 7, 13, 17, 18, and 34 is not adequate to continue the process. We believe that the limited resources from all agencies are better utilized by focusing on projects with potentially greater environmental impacts.
Many commenters raised concern that, by applying compensatory mitigation in the context of a NWP, the Corps authorizes activities that, but for the mitigation, may have more than minimal adverse environmental effects. Those commenters were concerned that the CWA requires that only activities with minimal effects may be authorized by a general permit. Activities that have more than minimal adverse effects are subject to the individual permit process and the associated analysis of alternatives, individual public notice procedures, and other aspects of individual review that help to ensure that potential adverse effects are fully avoided and minimized before any activity is approved.
Given these concerns, the Corps will be considering whether or not modifications to the mitigation provisions of the regulations are appropriate and will be meeting with other Federal agencies to discuss this issue. In the interim, the Corps is seeking specific comment on the use of compensatory mitigation in the context of the Nationwide Permit program and any recommendations for modification to the mitigation provisions. Should the Corps determine that revision to this policy is appropriate, a rulemaking process to change the regulations at 33 CFR part 330 may be necessary. This process would include notice and full opportunity for public participation.
A few commenters suggested that NWP 12 needs delineation of special aquatic sites. We disagree. Fills associated with NWP 12 are temporary in nature and the areas impacted are to be returned to original contours and elevations after the work is completed for projects not subject to the PCN process. The Corps evaluates those projects subject to the PCN process and will determine whether there are substantial problems regarding jurisdiction.
Several commenters requested we increase the time allowed for the agencies to respond. As noted in the preamble section on NWP 26 notification, we will allow the agencies an additional 7 calendar days by extending the maximum additional time the agency can request to 21 calendar days. The agency coordination times for all other NWPs will remain 5 and 14 days. We believe these modifications to the current times are responsive to the greatest area of concern, NWP 26, while not increasing delays for the regulated public where there is less potential for more than minimal adverse effects.
One commenter suggested that notification be required for NWP 23 because of the potential for large projects and significant wetland impacts. NWP 23 activities, by their definition, are actions "which neither individually or cumulatively have a significant effect on the human environment," have already gone through a NEPA analysis, and have already had a public review and comment period when they were first proposed for inclusion under NWP 23. Furthermore, in some specific cases a PCN is required in the individual Corps approval of another agency's categorical exclusions.
One commenter noted that there are no consequences for an incomplete notification, thus, it is not in the applicant's interest for him to raise all the issues that may affect his proposal. The commenter suggested that the resource agencies have information and resources that would help identify these issues and it would be advantageous to the program for the Corps to coordinate projects with them before making a complete determination. The consequences for submitting an incomplete notification is a delay in the Corps evaluation, and hence the authorization, of the project proposal. The Corps initial review of PCNs includes a determination on whether the PCN is complete. Since most applicants are trying to reduce the amount of delay as much as possible, we believe the incentive to submit a complete application is adequate.
A number of commenters provided recommendations for improving the coordination among agencies at the local level. The Corps is with this final package we are issuing today directing substantial increases in coordination and communication at the district and division level. This increased coordination will be part of developing regional conditions for the reissued NWPs, developing replacement NWPs for NWP 26, endangered species compliance, and working with the States. However, we also suggest that individuals and agencies contact their respective Corps districts to provide those recommendations.
One commenter suggested that the Corps notify the applicant upon receiving the PCN and indicate whether it was complete and when a decision would be made. The applicant will be notified if the notification is incomplete and will be informed regarding what information is necessary for the notification to be considered complete.
Several agencies recommended PCN's for NWP 5, 7, 13, 17, 18, and 34. The commenters indicate that major impact projects have been proposed involving NWP 7 (outfalls) and NWP 13 (bank stabilization). A commenter requested that the following list of permits be coordinated with resource agencies: 7, 12, 13, 17, 18, 21, 26, 27, 29, 34, 35, and C. Another commenter requested agency notifications for 7, 13, 14, 18, 21, 26, 33, 37, 38, and the new NWPs. We have carefully reviewed all of the requests for changes to the NWPs for which notification under General Condition 13 has been requested. Based on this review, several NWPs will involve notification coordination with the resource agencies, several will be Corps-only review of the PCN, and several are subject to the optional process for agency coordination. Some projects authorized under NWP 7 or 13 involve major impacts outside of the waters of the United States. These major impacts are not within the Corps authority to regulate or control.
Several commenters suggested changing the terminology of PCN back to PDN. The terminology causes confusion because the regulated activity is a discharge and construction implies work on high ground. The term PCN (pre-construction notification) has been adopted over the term PDN (pre-discharge notification) because many of the NWPs are not authorizing a discharge, in Section 404 waters, but are authorizing work in navigable, Section 10, waters. Since these do not involve authorization of a "discharge", we believe the term "construction" is more appropriate for all NWPs. The Corps does not control or regulate activities in uplands, including when construction is initiated, beyond these limited circumstances identified in 33 CFR part 324 appendix B, Scope of Analysis.
A number of commenters believe that the requirement for the applicant to notify the FWS and the SHPO speeds up their permit by allowing them to develop alternatives and mitigation measures. They believe that if the Corps is tasked with this responsibility, their permit will be delayed and the applicant would lose control of the schedule. They also believe that if the proposal is adopted, these agencies will not be willing to work directly with the applicant and will only work through the Corps. One commenter expressed concern that the reason for not requiring applicants to contact the SHPO was because the SHPO did not want to work directly with the applicants. The commenter suggested that this was counter-productive and that the Corps should explore ways to ensure that such organizations cooperate with the permit applicants early in the process. These agencies have requested that the Corps send the PCNs to them rather than direct contact between them and the applicant. This process ensures that these commenting agencies only review active, complete applications. This process does not preclude an applicant from contacting the agencies for information.
One commenter recommended that the SHPO be allowed a 30-day review to ensure that historic resources were adequately addressed. Another stated that the SHPO would not do the Corps work and that data on potential historic properties should accompany the transmittal of the PCN, and that any deadlines for response to the Corps begin after the receipt of adequate information. The Corps believes that the current process provides a reasonable amount of time for the SHPOs to provide their views. The intent of the PCN is to identify if there is a potential historic property problem, not to completely resolve such problems. If a problem regarding an effect on a historic property is identified during the PCN process, then the Corps will instruct the applicant that they cannot proceed with the project until coordination to resolve the problem is completed.
Several commenters stated that the notification process does not allow them to comment on proposed projects. They don't believe that the provisions in the CWA are being met, since the agencies and the public have no opportunity to comment. The Corps regulations establish a process for publishing proposed nationwide permits for public comment (33 CFR part 330). Based on this process, the Corps issues NWPs that have procedural steps to ensure agency coordination and the ability of the Corps district to require a full public interest review, where the Corps believes such review is necessary, through its discretionary authority.
A couple of commenters suggested a time threshold for Section 401 water quality certification that was in line with the other agency review times. The Corps regulations provide that project specific section 401 evaluations will generally be completed within 60 days. However, districts may, working with the States, extend this time period not to exceed 1 year. We do not propose to change this process.
One commenter suggested that extensions be provided to commenting agencies, or an IP be required, in situations where delays are caused by insufficient or inaccurate maps and depiction of proposed action. This commenter also indicated that the mitigation option of the contribution of monies to a wetland trust fund be more clearly discussed. This commenter also suggested that the Corps apply notification condition 13(b)(5) (restoration plan for temporary fill sites) to NWP 12 and 15, both of which allow the temporary placement of dredged or fill material. Finally, this commenter suggested that the Corps extend the initial comment period for resource agencies to 7 calendar days for all NWPs, and eliminate the prohibition on the Corps responding to agency comments. The Corps does not coordinate PCNs with resource agencies until the PCN is considered complete, so that the basic information is adequate for review. Furthermore, we believe it is essential to provide an answer to applicants within the PCN period of 30 days (45 days for NWP 26). We do not believe that it would be beneficial to explicitly define in lieu fee systems nor wetland land trusts. These vary around the country and we will expect our districts to ascertain whether or not a given situation will reasonably ensure quality and successful mitigation. We do not believe that any additional restrictions are necessary for either NWP 12 or NWP 15. We have already added substantial additional restrictions to NWP 12. Should a problem arise with NWP 15, either the Coast Guard or the Corps will address it on a case by case basis. We do not believe that it is necessary to extend the initial comment period for the resource agencies from 5 to 7 days. This period is simply to determine whether or not site specific, substantive comments will be provided. Finally, we do not believe that the notification process or environmental protection would be advanced by responding to resource agency comments on PCNs. If any agency wishes to know how the Corps utilized their comments, that agency can call the Corps district and discuss the specific project. We encourage this type of informal coordination.
One commenter suggested that inclusion of different times regarding agency review and response to applicants for different nationwide permits would create a lot of confusion. We carefully considered the concern that variable comment periods might be confusing to the commenting agencies or the regulated public. However, under our revised NWP 26, we expect a substantial increase in the number of PCNs, and the Corps is directing its districts to carefully consider project impacts and potential mitigation on most of them. Therefore, we believe the additional time is necessary for NWP 26.
One commenter suggested that affected tribes be included in the notification process. We believe that since the tribes are inherently aware of all Corps regulatory matters on tribal lands, additional notification is unnecessary. Furthermore, we believe that NWP General Condition 8, "Tribal Rights," is sufficient to address tribal treaty rights issues, and District Engineers will notify the tribes regarding these treaty rights, as necessary.
We believe that the review of PCNs by the state does provide valuable information and we have retained that provision. However, the optional coordination procedure is made available for activities that we believe will typically be clearly minimal. We believe that allowing this optional procedure only for the Federal resource agencies will adequately ensure appropriate coordination.
A few commenters requested eliminating the provision authorizing discharges when a DE does not notify the applicant within a specified time frame. We believe that the PCN process allows the district adequate time to evaluate PCNs and provide the applicant with an answer. Moreover, we believe that we must have a definitive answer to the applicant at the end of the 30-day (45 days for NWP 26) PCN period. Creating extensions would result in substantial confusion.
One commenter recommended that wording of condition 13(f) be changed to read "*** with the current methods required by the Memorandum of Agreement among USDA, EPA, and DOA." This commenter also stated that condition 13(g) mitigation, should specify that mitigation banks need to comply with the 1995 Federal Guidance, should include a requirement to monitor compensatory mitigation projects for a specified period of time, abandoned mine lands should have no contaminants accumulated as a result of the mining operation, and compensatory mitigation should be accomplished prior to initiation of authorized work. We believe that compliance with existing conditions of the NWPs and the fact that requirements for delineations and mitigation banks are implicitly clear, based on total program guidance, make additional guidance on these issues unnecessary. Regarding timing of compensatory mitigation, we believe it is more important to have potentially high-quality mitigation, such as can be provided with in lieu fees to states, locals interests or land trusts, rather than pushing for mitigation completion before impacts occur.
One commenter requested that individuals impacted by a nationwide permit should be notified. We have followed the clear provisions of 33 CFR 330 regarding notification of the nationwide permits.
Several commenters requested that the Corps return to the 1991 wording regarding including any conditions the District Engineer deems necessary under Condition 13(d), and that, if the new language is retained, a clear explanation of why this change was made should be provided. We have reviewed the proposed language as well as the 1991 language regarding conditions that will be placed on a PCN verification. We have decided that the original language, stating that the District Engineer will include conditions he deems necessary, is the appropriate language. This condition is adopted as discussed above.
14. Compliance Certification: The Corps has determined that in association with our efforts to collect more accurate data on project impacts and mitigation, and consistent with our intent to maximize permittee compliance, this condition is necessary. The condition requires the permittee to certify, in writing, that he has accomplished the work as authorized by the Corps, including any mitigation. The certification will help the Corps ensure permit compliance as well as continuously evaluate mitigation success.
15. Multiple Use of Nationwide Permits: In response to the concerns raised regarding the stacking of NWPs, the Corps has determined that a notification to the Corps, where any NWP 12 through 40 is combined with any other NWP 12 through 40, as part of a single and complete project, should be required to ensure that the effects will be minimal. This notification will be reviewed by the Corps only. Coordination with the resource agencies is not required, but may be done on a case-by-case basis when determined by the District Engineer to be necessary. Furthermore, no notification is required to the Corps when any NWP 1 through 11 is combined with any other NWP. The issue of stacking of NWPs is discussed in more detail in the "Stacking of NWPs" section of this Preamble.
1. Water Supply Intakes: The Corps proposed no changes and there were no comments on this condition. The condition is adopted without change.
2. Shellfish Production: The Corps proposed no changes and there were no comments on this condition. The condition is adopted without change.
3. Suitable Material: The Corps proposed no changes to this condition. One commenter suggested that this condition should include a certification for the toxicity testing of the fill material. We believe the permittee is responsible for taking reasonable measures to ensure that suitable fill material is free from toxic pollutants. This suggestion would be an unreasonable requirement for minor projects with little likelihood of the potential for toxic pollutants in toxic amounts. Furthermore, the NWP restricts the use of certain materials. In addition, for those projects with a Preconstruction Notification, the DE will require testing if the DE has reason to believe the material may be contaminated. Another commenter suggested that asphalt be added to our list of unsuitable materials specifically mentioned in this condition. Since this has been a general misunderstanding throughout the country that has resulted in several violations, we agree with this commenter and have added this to the condition. This condition has been modified as discussed above.
4. Mitigation: The Corps proposed a change to this condition that would allow off-site mitigation in lieu of on-site mitigation, if it is the environmentally preferred option. Several commenters were opposed to the proposed change to this condition. They believed the change would result in one or more of the following: A more subjective evaluation would occur; the evaluation would focus solely on a project's benefit to the environment instead of the Corps process of balancing various public interest factors; the District Engineer would be required to evaluate one wetland type against another; and time requirements and monetary costs would be increased for the applicants. Several other commenters were concerned that the proposed modification sidesteps the application of the mitigation sequencing process (avoidance, minimization, and compensation) and would allow evaluation of compensation concurrent with avoidance and minimization. Two commenters believed that the proposed evaluation process would allow "buy down" of impacts via compensation in order to result in a minimal net effect determination. Several commenters felt that mitigation should be eliminated as a condition since activities requiring mitigation, by definition, include more than minimal environmental impacts. One commenter stated that the proposal added no value in protecting or preserving wetlands. A few commenters supported the clarification and requirement for mitigation. One commenter recommended that the District Engineer have the ability to approve mitigation on-site, off-site, or at an established mitigation bank. Another commenter suggested that the U.S. Fish and Wildlife Service and U.S. Environmental Protection Agency should have the opportunity to comment on the results of the District Engineer's evaluation. One commenter criticized the general permit program for allowing wetland losses without avoidance of impacts or with no mitigation at all.
This condition requires that the permittee avoid and minimize discharges of dredged or fill material at the project site to the maximum extent practicable. This condition does not address the issue of requiring compensatory mitigation to reduce a project's impacts to the minimal effect level. This issue is discussed in the preamble in the discussion of General Condition 13. Furthermore, the "sequencing" requirement for individual permits for off-site avoidance under the section 404(b)(1) Guidelines does not apply to general permits. (See 40 CFR 230.7.) The proposed change was for allowing some projects, with minimal adverse effects, to be allowed less on-site avoidance and minimization than to the maximum extent practicable, provided off-site mitigation is provided such that there are more environmental benefits. We believe that where there is more environmental benefit from such mitigation, it should be allowed. The District Engineer will review and consider such a proposal, but will only approve it if the District Engineer determines that there is clear environment benefit. This condition is adopted as proposed.
5. Spawning Areas: The Corps proposed no changes to this condition. One commenter suggested that we ban discharges in spawning areas during spawning season. Another commenter suggested that discharges also be avoided during the incubation season. In addition to this condition, District and Division Engineers can and do add local restrictions, by regionally conditioning the NWP, to address certain activities along some waters at important times of the year for spawning activities. We believe that since these impacts vary from waterbody to waterbody and by type of activity, that it is best handled by specific regional conditions. This condition is adopted without change.
6. Obstruction of High Flows: The Corps proposed no changes to this condition. There were no comments on this condition. This condition is adopted without change.
7. Adverse Effects From Impoundment: The Corps proposed no changes to this condition. A couple of commenters suggested modifying this condition to require avoidance of impoundment impacts. We believe that this condition has been successful in ensuring that the impacts will be minimal and at the lowest level practicable. This condition is adopted without change.
8. Waterfowl Breeding Areas: The Corps proposed no changes to this condition. One commenter suggested disallowing any discharges within waterfowl breeding areas. Another commenter suggested that we include breeding areas for shorebirds and neotropical migratory songbirds. The Corps believes this would place an unreasonable and overly restrictive limitation on this NWP, and that the condition, as worded, provides sufficient protection. This condition is adopted without change.
9. Removal of Temporary Fills: The Corps proposed no changes to this condition. A few commenters suggested requiring the disturbed area be revegetated with indigenous plant species. We believe the conditions imposed on NWPs allowing for temporary fills will enable the area to revegetate naturally with native species once the area is restored to its preexisting elevation. This condition is adopted without change.
Regional Conditioning of Nationwide Permits: Concurrent with this Federal Register notice, District Engineers are issuing local public notices. In addition to the changes to some NWPs and NWP conditions required by the Chief of Engineers, the Division and District Engineers may propose regional conditions or propose revocation of NWP authorization for all, some, or portions of the NWPs. Regional conditions may also be required by state Section 401 water quality certification or for state coastal zone consistency. District engineers will announce regional conditions or revocations by issuing local public notices. Information on regional conditions and revocation can be obtained from the appropriate District Engineer, as indicated below. Furthermore, this and additional information can be obtained on the internet at http://wetland.usace.mil/.
Alabama
Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288, Mobile, AL 36628-0001
Alaska
Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898, Anchorage, AK 99506-0898
Arizona
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN: CESWL-CO-R, P.O. Box 867, Little Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, Sacramento, CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson Plaza NE, Rm 313, Albuquerque, NM 87109-3435
Connecticut
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building, 100 Penn Square, East Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, Jacksonville, FL 32232-0019
Georgia
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889, Savannah, GA 31402-0889
Hawaii
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230, Fort Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602, City-County Airport, Walla Walla, WA 99362-9265
Illinois
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2004, Rock Island, IL 61201-2004
Indiana
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59, Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2204, Rock Island, IL 61201-2004
Kansas
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59, Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267, New Orleans, LA 70160-0267
Maine
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, Baltimore, MD 21203-1715
Massachusetts
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
Michigan
Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027, Detroit, MI 48231-1027
Minnesota
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street, East, St. Paul, MN 55101-1638
Mississippi
Vicksburg District Engineer, ATTN: CELMV-CO-0, P.O. Box 80, Vicksburg, MS 39180-0080
Missouri
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Montana
Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE 68101-0005
Nebraska
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, Omaha, NE 68101-4978
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, Sacramento, CA 95814-2922
New Hampshire
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building, 100 Penn Square East, Philadelphia, PA 19106-2991
New Mexico
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson Plaza NE, Rm 313, Albuquerque, NM 87109-3435
New York
New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits Federal Building, New York, NY 10278-0090
North Carolina
Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890, Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, Omaha, NE 68102-4978
Ohio
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street, Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa, OK 74121-0061
Oregon
Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946, Portland, OR 97208-2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, Baltimore, MD 21203-1715
Rhode Island
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, Omaha, NE 68102-4978
Tennessee
Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070, Nashville, TN 37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300, Ft. Worth, TX 76102-0300
Utah
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA 95814-4794
Vermont
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, Waltham, MA 02254-9149
Virginia
Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street, Norfolk, VA 23510-1096
Washington
Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755, Seattle, WA 98124-2255
West Virginia
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street, Huntington, WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street, East, St. Paul, MN 55101-1638
Wyoming
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, NE 68102-4978
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, Baltimore, MD 21203-1715
Pacific Territories
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230, Fort Shafter, Honolulu, HI 96858-5440
Puerto Rico & Virgin Is
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, Jacksonville, FL 32232-0019
Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil Works.
Accordingly, these Nationwide Permits are issued as follows: