1. Aids to Navigation: Two commenters supported reissuance of this NWP and no changes were proposed. NWP 1 is reissued without change.
2. Structures in Artificial Canals: No changes to this permit were proposed by the Corps. One commenter suggested the term "artificial canal" be defined and that the definition exclude historic sloughs or channels. Another commenter suggested that the term "structures" is too vague and requested clarification on the interpretation of "principally residential canals," whether this NWP authorizes the removal of structures, and whether it can be used in place of or in association with NWP 13 for bank stabilization.
While the term artificial canal could be misinterpreted by some to include channelized natural areas, this is clearly not the Corps interpretation. Should a Corps district find that individuals are using NWP 2 in such areas, the district would take appropriate action to bring such activities into compliance through proper procedures. In accordance with 33 CFR 322.5(g), structures in previously authorized canals would have been considered under applications for the original canal work. In grandfathered canals or in cases were structures may not have been considered, the DE may use discretionary authority to evaluate structures if more than minimal adverse effects are anticipated. Artificial canals within principally residential developments would be used primarily for personal or recreational egress and ingress rather than for commercial use. The Corps procedures, as outlined in the general condition for historic properties, comply with the requirements of 33 CFR part 325 appendix C, which implements 36 CFR part 800 and fully satisfies the requirements of National Historic Preservation Act (NHPA). This nationwide permit is not to be used for bank stabilization projects; such projects should be reviewed for authorization under NWP 13. In case(s) of independent utility, NWP 2 may be used in conjunction with NWP 13 provided individual or cumulative adverse effects are not more than minimal. We anticipate that the impacts resulting from the removal of structures in artificial canals would be similar to the impacts derived from the original installation. Consequently, removal activities are authorized by this NWP. NWP 2 is reissued without change.
3. Maintenance:The Corps proposed no changes to this nationwide permit. One commenter recommended that the NWP not allow restoration that clearly adversely affects fish and wildlife. Several commenters recommended that no deviation from the original design be authorized by the permit since changes could result in significant adverse effects, while one commenter suggested eliminating the qualification for "minor deviation in the structure's configuration." Another commenter requested a list of types of authorized activities and that "minor" be defined. Another commenter asked for inclusion of bridge/culvert replacement that complies with flood-proofing and structural design standards.
The experience with NWP 3 has been very good; navigable waters have not been obstructed and impacts are very minor. Furthermore, in many cases, use of NWP 3 actually enhances the aquatic environment. For example, replacing a seawall that is damaged often results in eliminating chronic turbidity caused by erosion. Because all structures and fills require maintenance periodically and because infrastructure repair following national disasters is critical to the public welfare, we believe this nationwide permit is necessary. We are retaining the provision allowing "minor deviations" in order to provide the flexibility necessary to keep pace with construction technology, building codes and public safety. Activities with deviations resulting in more than minimal adverse effects would not be authorized by this nationwide permit, nor would activities having more than minimal adverse effects on fish and wildlife. The qualifications attached to the "minor deviations" provision are considered necessary in order to ensure adverse effects are avoided and minimized to the extent possible. This NWP is not limited by type of facility. "Minor" is not specifically defined, because the variety of structures and fills included makes defining the word impracticable. "Minor" is meant to refer to a level of project deviation which will result in a level of adverse environmental effects associated with the change that are no more than minimal. Bridge and culvert replacement in compliance with local requirements and design standards would normally be authorized under the permit if they meet the limitations and conditions of the permit.
One commenter requested that NWP 3 authorize activities previously authorized by 33 CFR 330.3 and equivalent authorizations at the state level or constructed prior to the excavation rule. NWP 3 specifically states in the first sentence that 33 CFR 330.3-authorized activities are included. Similar authorizations under state laws can vary considerably and may not be consistent with NWP 3; thus a blanket authorization is not appropriate. This nationwide permit is tied to structures and fills only, and cannot be used to authorize the repair, rehabilitation or replacement of excavated facilities. The term "structure" does not include unconfined waterways, such as streams and non-lined drainage ditches. The term does include such activities as bank protection measures, ditches and canals lined with man-made and placed materials.
Several commenters recommended that fills and structures required by special conditions in a previously issued permit be covered. The NWP does authorize maintenance of such structures or fills that were previously authorized. This NWP does not authorize activities that were not previously authorized by the Corps.
Another commenter suggested that ESA coordination occur after catastrophic events when new habitat can be created but then damaged by repair activities. General Condition 11 and ESA section 7 require coordination for endangered species. Consideration of improved habitat is made under section 7.
Another commenter felt maintenance/operation plans should be approved before the work is conducted. We believe that this would create an unnecessary burden on the applicant and the Corps for authorization of maintenance and repair activities with less than minimal adverse effects.
One commenter believed that the two year construction time period should be extended, while another felt that two years is long enough. In our judgment, two years has proven to be a reasonable period that does not jeopardize environmental protection due to changing conditions. The permit includes provisions for the DE to extend the period if warranted.
Another commenter felt that this NWP should not be allowed in floodplains. We believe the floodplain capacity would not be appreciably changed for structures or fill maintenance and repair within the limits of this NWP.
One commenter suggested limiting the impact area and another suggested the PCN procedure be applied to this NWP. Since NWP 3 only authorizes structures and fills that are existing, the impacts have already occurred. Maintaining them creates little or no added adverse effects, which ensures that effects would be less than minimal. Therefore, we believe neither of these limitations should be applied. NWP 3 is reissued without change.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities: As part of the proposed modification of this permit, we were clarifying that the permit does not authorize the use of covered oyster trays or clam racks. One commenter questioned whether the prohibition on clam racks included "clam bags" and was concerned about the scope of "covered oyster trays and clam racks." This commenter was also concerned about the harvesting of natural live rock, the inclusion of open water pens in the definition of "impoundments or semi-impoundments for culture of motile specimens," or qualitative limitations to define "small fish attraction devices"; and whether bottom dredging of sea grass areas or "bottom tending gear" for commercial purposes were authorized by this permit. One commenter suggested that the permit should specifically exclude commercial scale net pen culture in addition to oyster trays and clam racks. Another commenter asserted that shellfish beds should not be authorized under this permit. This commenter also stated that the exclusion of authorization of covered racks and the location of racks in wetlands of sites that support aquatic vegetation was not sufficient. The commenter cited information that described changes in species diversity associated with the location of racks on and in intertidal mudflats. One commenter stated that the permit should be modified to authorize the releases of scallop and hard clam seed into eelgrass cover. One commenter urged that small aquaculture projects be excluded from this permit, while another commenter stated that fish hatcheries should be specifically excluded. A few commenters suggested that the installation of fish ladders be included under the permit. One commenter was concerned about issuance of permits in areas that have been customary boating channels.
Each of the comments on this nationwide permit are expressions of concern for unique situations in specific regions of the Nation. It is not possible to address all the possible limitations and conditions that may be appropriate at a local or regional level. Nor can we address all the possible variations in terminology, such as "clam bags." Therefore, we believe it is more reasonable and practicable for such comments to be addressed through regional conditions and the provisions for discretionary authority at the division and district levels. Corps districts have the authority, working with the divisions, to restrict use of this NWP in high value areas, such as particularly vulnerable seagrass beds, if they deem such restrictions to be necessary. The one change proposed by the Corps was not objected to and received some comments of support. Therefore, that change has been made to the permit in its reissuance.
Another commenter suggested that the permit be modified to include "sites where submerged aquatic vegetation may not be present in a given year."
Although we believe that the NWP language includes such sites in the terminology "*** or sites that support submerged aquatic vegetation ***" (i.e., a site may not have submerged aquatic vegetation present, but could support such vegetation), we have clarified this in the NWP. NWP 4 is reissued with the proposed changes and the clarification stated above.
5. Scientific Measurement Devices: The Corps proposed no changes to this NWP. A few commenters were concerned that the structures permitted by this NWP could preclude or substantially obstruct movement of aquatic organisms including migratory fish. One commenter was concerned that this NWP does not provide any limit on the size or use of the structures authorized and suggested that a maximum size be included (e.g., 1000 square feet). This commenter also recommended that the NWP be conditioned that the structure be used exclusively for purposes associated with scientific measurement to preclude anyone from using this NWP to circumvent the permit process. One commenter recommended that the 25 cubic yard threshold be maintained but to eliminate the PCN requirement.
We believe the concern for impeding the passage of fish or shellfish is addressed by General Condition 4. Due to the varying structures involved in scientific measuring devices, imposing a size limitation would be difficult and unwarranted. A condition will be added stating that any structure authorized by this NWP must be exclusively used for purposes associated with scientific measurements. We have also modified the PCN requirement so that applicants will need to notify only the Corps. NWP 5 is reissued with the modifications described above.
6. Survey Activities: The Corps-proposed changes to this nationwide included allowing discharges associated with the placement of structures necessary to complete a survey for historic resources and soil surveys. Most commenters supported the proposed changes. A few commenters requested that the placement of survey markers such as benchmarks and monuments be authorized under this NWP. One commenter felt that mechanical clearing of survey lines should be included, but limited to 8 to 10 foot widths. A few commenters requested that limited discharges and structures necessary for the recovery of artifacts and information be included in the NWP rather than excluded as proposed. Many commenters asked for the exclusion of seismic exploratory operations involving the use of explosives, such as "3-D" operations, due to the extensive scope and environmental impacts of such activities. It was proposed that the term "core sampling" be changed to "soil, rock and sediment sampling" and changing "exploratory-type bore holes" to "exploratory-type holes" because while most sampling of rock may be by coring, much of the soil sampling is by other methods (i.e., augering, hand shovel, backhoe, etc). Other commenters asked that the permit language specifically indicate that no permanent structures are authorized, all fills be removed and that the area be restored to its original state.
The placement of survey markers such as benchmarks and monuments is authorized under NWP 18 within limitations. Activities necessary for the recovery of artifacts and information are not authorized by this NWP which is intended for authorization of survey activities only to ensure the minimal adverse effects limitation is not exceeded. Operations involving the use of explosives such as 3-D operations with blast shock during seismic tests, or mechanical landclearing activities, have not been categorically excluded. These activities are either unique to, or differ between, geographical regions of the Nation; therefore, regional conditions are the best way to address concerns about minimizing the effects of 3-D seismic surveying. Corps districts will be directed to coordinate with any Federal, state, or tribal authority expressing a concern about 3-D seismic surveying for the purpose of developing regional conditions to address those concerns, as appropriate. Of course, use of towed explosive, pneumatic or seismic devices that do not involve construction, excavation or other work in sediments do not require any permit from the Corps. We have conditioned this NWP to clarify that it does not authorize any permanent structures or fills. The current wording of the NWP does include, but is not limited to, the use of augers, shovels, backhoes, and other small equipment, as well as core drills. NWP 6 is reissued with the proposed changes and the clarification stated above.
7. Outfall Structures: The Corps proposed no changes to this NWP. A number of commenters objected to re-authorization of this NWP or stated that work in tidal wetlands or areas supporting anadromous fishes should be excluded. Commenters stated that outfalls have caused the loss of wetlands and may trap or entrain fish. Several commenters stated that the NWP should contain a requirement to include measures in the design to prevent such fish loss. One comment indicated that work in areas that may be contaminated should be excluded. Another stated that activities authorized by this NWP have significant adverse environmental effects.
Regional conditioning of the nationwide permit and the provisions for discretionary authority at the division and district levels will provide tools necessary to protect fish, wetlands, and water quality, and to address any other environmental effects that potentially are more than minimal.
One commenter requested elimination of the notification requirement when the construction of the outfall requires less than 25 cubic yards. Several commenters called for retaining the notification requirement.
The notification requirement will be retained to allow review of proposed projects for greater than minimal adverse environmental effects and impacts to navigation.
Several commenters stated that this permit violates section 404(e) of the Clean Water Act because the discharge structures may not be similar in size or in the material discharged. One commenter called for authorizing all intake structures under this NWP.
The activities authorized by this NWP are similar because they are similar in scope and purpose and are reviewed and approved pursuant to the National Pollutant Discharge Elimination System (NPDES) under section 402 of the Clean Water Act. The relationship of these projects to section 402 assists the Corps in arriving at a minimal adverse effects determination. The inclusion of all intake structures under the NWP would make such a determination not possible. NWP 7 is reissued without change.
8. Oil and Gas Structures: The Corps proposed minor changes to this nationwide permit to clarify that Corps review for taking discretionary authority is limited to the effects on navigation and national security. One commenter was concerned that work could occur in environmentally sensitive areas. Another commenter suggested that pipelines be excluded from use of this NWP. A few commenters believed that this NWP should not be reissued because of potential impacts associated with oil and gas exploration and that this NWP does not meet the "similar in nature" or "minimum effects" threshold of section 404(e) of the Clean Water Act. One commenter recommended that a PCN be required for this NWP. A few commenters believed that individual state 401 water quality certification should be required for these activities.
The Corps believes this NWP is very restrictive. The only structures that can be authorized under this NWP are those within areas leased by the Department of the Interior, Minerals Management Service. The general environmental concerns are addressed in the required NEPA documentation the Service must prepare prior to issuing a lease. Further, the Corps involvement is only to review impacts on navigation and national security as stated in 33 CFR 322.5(f). NWP 8 is reissued with the proposed clarifications.
9. Structures in Fleeting and Anchorage Areas: The Corps proposed no changes to this NWP. One commenter requested clarification of the term "structures" and the definition of "fleeting and anchorage areas," and expressed concern for secondary impacts of vessel discharges, and impacts from shading submerged aquatic vegetation by the structures.
The NWP is specific to the purpose of moorage of vessels, thus structures will be small compared to the vessels. Fleeting and anchorage areas are determined by the U.S. Coast Guard and indicated on navigation charts. They are for concentrating vessels in an area that minimizes navigation impacts to other vessels while the former vessels wait for unloading cargo, etc. Shading impacts are not expected as these areas are usually in deep water and the structures and buoys seldom produce measurable shading. NWP 9 is reissued without change.
10. Mooring Buoys: The Corps did not propose changes to this NWP. One commenter expressed concerns about the limitations or specifications on the size or number of mooring buoys, and the environmental restrictions on location.
Comments regarding specific areas that should be excluded or other special restrictions that are needed to protect special areas such as shellfish beds or submerged aquatic vegetation should be dealt with by contacting the appropriate district and requesting the addition of regional conditions. Based on our experience, we do not anticipate that the mooring buoys and anchorage systems will have more than minimal adverse effects, either individually or cumulatively. NWP 10 is reissued without change.
11. Temporary Recreational Structures: The Corps proposed no changes to this NWP. A few commenters were concerned that the NWP may cause removal of riparian vegetation and alter the nearby shore aquatic environment, and that the Corps should define "temporary," "small floating docks" and "seasonal". A commenter requested that the NWP be expanded for certain commercial activities other than jet ski, parasailing, and similar rentals, provided the activity is of temporary duration.
We disagree with the approach of attempting to define national time limitations on temporary or seasonal structures because of the seasonal variations for different recreational activities from region to region. Regional conditions can be developed for the NWP and/or the District Engineer may use discretionary authority, on a case-by-case basis, if duration, structure size, or location require such action. Limiting the NWP to discrete events would greatly reduce its utility. This nationwide permit was proposed to authorize temporary recreational structures which overall would have only minimal adverse effects. Given this, and the discretionary authority provisions, the Corps believes that the NWP adequately balances the need for temporary recreational structures in waters of the United States, while protecting riparian and aquatic resources. NWP 11 is reissued without change.
12. Utility Line Backfill and Bedding: The Corps proposed rewording of this NWP to include discharge of dredged material from the trench excavation, and requested comments establishing limitations for special aquatic sites. A large number of comments addressed NWP 12. Based on the comments we received and the Corps internal evaluation of the implementation of NWP 12, we have made substantial changes to this permit. We have added a PCN review for four situations: for any activity that would be authorized under NWP 12 that involves more than 500 linear feet in waters of the United States; for any project that involves mechanized landclearing of forested areas; for any utility line that is placed parallel to a water of the United States; and for any activity involving authorization under section 10 of the Rivers and Harbors Act of 1899. We believe that these increased limitations will ensure that no more than minimal adverse effects to the aquatic environment will occur.
The comments were closely split between supporting issuance without changes and supporting issuance with limitations. Several commenters were opposed to reissuance based on environmental impacts. Many commenters, requesting limitations, made suggestions on those limits: 200 linear feet, 1,000 linear feet in forested wetlands, 6 inch diameter utility line, 0.33 and 0.5 of an acre. Some commenters suggested PCN procedures above particular limits: 6 inch diameter line, 0.5 of an acre. The allowed duration of side casting also received suggestions: no side casting, 14 days, 30 days. Work with a maximum width of 30 feet was suggested by two commenters.
The variation in wetland values across the nation dictates that a limitation, or threshold for PCN, not overly restrict use of the NWP or unnecessarily add administrative burden to any large geographic area. Potential impacts will vary with the construction methods. The acreage limitation presents the possibility that high value wetlands could suffer more adverse effect at less acreage than the limitation/PCN threshold, but low value or easily recovering wetlands would require unnecessary added administrative procedure when exceeding an acreage limitation/threshold. An acreage limit of 0.33 acres would allow a nearly 2 1/2 mile long utility line trench that was one foot wide. This could be a minimal impact in some areas, but may require an individual permit in other geographic areas and/or wetland types or values.
Based on careful review of all the comments, we have determined that certain limitations should be established and that certain activities will require a Corps-only PCN. We have added section 10 to this permit to allow districts to authorize projects that cross navigable waters. To ensure the navigable capacity of such waters will not be adversely affected, we have also established a PCN for any authorization that involves work in section 10 waters. We have also explicitly stated that mechanized landclearing, including landclearing of forested wetlands, for overhead utility lines may be authorized under NWP 12. To ensure that only minimal adverse effects will occur, we have established a PCN requirement for any utility line that will require landclearing of forested wetlands. We have also included the requirement for a PCN whenever a utility line is placed parallel to a stream bed. Finally, in order to ensure that only minimal adverse effects will occur, we have established a PCN requirement for any use of NWP 12 that exceeds 500 linear feet in waters of the United States.
Several commenters recommended that stream crossings be allowed only if perpendicular to the stream. One commenter suggested that bank stabilization must occur by segments rather than at the completion of the entire project. Another stated that laying utility lines on bottoms of streams should be discouraged. Several recommended that alternative routes be examined more thoroughly. We have added several PCN requirements, including one for situations where a utility line is proposed to be placed parallel to a stream bed. Generally, utility lines are placed perpendicular to a stream and we are, with this notice, directing the Corps districts to critically evaluate any projects that may be proposed to be placed parallel to a water of the United States. Moreover, we believe that it should be an exceptional case where a district authorizes a utility line within, or within wetlands parallel to, a stream bed for more than 100 feet. With the added PCN review, by the Corps, for any project that should be subject to a generalized alternative analysis (i.e., more than simply adjusting the alignment slightly to ensure minimal adverse effects), the district will use its discretionary authority to require an IP.
Several commenters believe that this permit should not be used in combination with other permits (see additional discussion on stacking permits). This restriction would be too limiting for many projects that have minimal adverse effects for the entire project including utility lines. At times, utility lines are considered "single and complete projects" as they support existing developments but will also support other future development. We have added a PCN for any stacking of NWP 12 with any other NWP.
Several commenters appeared to be confused with the word "subaqueous". Two commenters suggested slightly different wordings and deleting "subaqueous". The term subaqueous referred to below the surface of the ground (wetland) or water surface; a line laid on the surface does not require a section 404 permit but any mechanized landclearing to lay such a line would. We have dropped "subaqueous" as we feel the reference is not needed and confusing. One commenter desired authorizing maintenance of landclearing. Most maintenance consists of cutting the wetland vegetation above the soil, which is not regulated under section 404 when the soil is not disturbed. If maintenance of a utility line corridor involves landclearing as defined in 33 CFR 323.2(d)(1), it would require additional authorization.
One commenter was confused about the "single and complete project" requirement for an NWP combined with an individual permit in relation to the required section 10 permit for utility lines crossing navigable waters. The NWP authorization covers the excavation and backfill portion in conjunction with the remaining single and complete portion of the line that continues beyond the navigable water, usually in wetlands. "Single and complete" for a linear project under the NWPs is defined at 33 CFR 330.2(i); briefly, a linear project is single and complete at each widely separate water crossing. Also, the navigable water portion of the structure (utility line) required a permit under section 10 because it was not included in NWP 12 authorization. Although we have added section 10 to NWP 12, the single and complete provision for linear projects remains in effect.
In the past, NWP 12 has not included Section 10 authorization, which has added an individual permit procedure (usually a Letter of Permission) to the authorization of a utility line in navigable waters. The Corps has decided to add section 10 authorization to minimize the administrative procedures and decrease the time needed for authorization. However, we are requiring a PCN for review of navigation impacts and requiring procedures for notifying the National Oceanic Atmospheric Administration for charting the utility line to protect navigation.
A few commenters were confused by the term "parallels a water." The Corps had suggested, in the proposal, that care should be taken during the placement of a utility line parallel to a waterbody. We are concerned with the potential adverse effects associated with the placement of a utility line parallel to a waterbody and, therefore, have modified and clarified this language. We have removed the proposed language and have added a PCN requirement for the placement of a utility line within a water of the United States parallel to a stream and have clarified that "parallel to a stream" means installation of a utility line lengthwise to the bed of the stream. Furthermore, we have added a PCN requirement for proposed projects that would involve placing utility lines along stream beds (see discussion above). Two commenters suggested clarifying whether the NWP included discharges for access roads and foundations for structures supporting overhead transmission lines. Structural fills for overhead utility line supports are often permitted by NWP 25. Access roads could be authorized by NWP 14 or 26 in some cases. The Corps has clarified that mechanized landclearing is authorized for overhead utility lines as long as the width is kept to the minimum necessary. Furthermore, as discussed above, we have added a Corps-only PCN for landclearing forested areas. Access roads and foundations for overhead lines are not authorized. NWP 12 is reissued with modifications as discussed above.
13. Bank Stabilization: The Corps proposed no changes to this NWP. Two commenters wanted to keep the current language of the nationwide permit with no changes, while another expressed general support. Several commenters objected to limitations on length of project area or quantities of fill, particularly for flood control structures. A few commenters stated that the limitation of one cubic yard of fill per linear foot should not include any earthen backfill to return the bank to a former footprint, and that the limitation should apply only to fills that encroach into the pre-existing waterway. Their reasoning is that this would allow reconstruction of failed levees and road embankments and would not result in a loss of wetlands or jurisdiction relative to the pre-failure condition. These commenters also note that the prohibition of any fill in any special aquatic site is a restriction that unduly constrains projects and often renders this NWP inapplicable. They recommend that impacts to special aquatic sites of up to 0.1 acres be allowed without notification, and that greater acreage be allowed with notification. These commenters further recommend that use of biotechnological slope protection or other methods relying on vegetative stabilization be allowed greater PCN thresholds to encourage such usage.
We believe expansion of the scope of this NWP would result in a potential for more than minimal adverse effects. The permit is designed specifically for the protection of existing bank lines at the time of protection and does not authorize filling to restore the original bank line or any other intermediate alignment of the bank. Adjustment in the alignment of the bank is allowed only for reasonable and practical design and construction considerations within the limitations of NWP 13.
Two commenters recommended removing the special aquatic site restriction for ephemeral watercourses when there is no flow under the premise that such areas are defined as wetlands under a broad definition. These commenters also recommend that the nationwide permit recognize that there is likely to be a construction zone 30 feet or greater along the bank within jurisdictional areas where project impacts will be incurred for installation of bank protection.
We disagree that wetlands in ephemeral systems are necessarily of lesser value than other waters simply because they do not contain water at all times of the year. Therefore, removal of special aquatic site restrictions is not warranted. We do recognize that certain bank stabilization projects necessitate keying in the toe of the slope to ensure adequate protection, and that such work requires a construction footprint that will impact additional areas beyond the waters of the United States. If any such adverse effects are likely to be more than minimal for a particular waterbody, the Corps will add regional conditions to ensure that only minimal adverse effects will occur.
One commenter stated that notification is an unnecessary level of Federal review, and that it usurps the states' authority to assess site-specific impacts to water quality under section 401.
This is not an expansion of authority because notification has been a condition of this nationwide permit since its last re-authorization in January 1991. Likewise, it does not usurp the authorities of the states pursuant to section 401 of the Clean Water Act. A state may condition its 401 water quality certification for this NWP so that it will review projects over 500 feet in length, and issue or deny site-specific section 401 certification.
Many commenters were opposed to the reissuance of this nationwide permit because they perceived it to be used in ways inappropriate to its intended use, such as a precursor to channelization of watercourses. Specifically, they suggested that permittees might use this nationwide permit to construct flood control works, and how riprapping affects existing hydrology with adverse effects on habitat and adjoining properties. Several commenters stated that this nationwide permit should specifically exclude channelization, noting that bank stabilization projects can adversely affect habitats adjacent to jurisdictional waters that may support plant or animal populations that are equally limited. We agree that channelization is an inappropriate use of this nationwide permit. It is the responsibility of each district to determine whether a particular project is contributing to greater than minimal cumulative adverse effects, and to exercise discretionary authority if they believe such effects are occurring.
Several commenters noted that this nationwide permit should be used selectively on a regional or watershed basis to prevent cumulative adverse effects in sensitive habitats. Others stated that this nationwide permit needs better monitoring and compensatory mitigation, or should always require compensatory mitigation. One commenter stated that this nationwide permit should not be used in conjunction with any other nationwide permit.
We believe the provisions for regional conditioning and asserting discretionary authority will ensure that greater than minimal adverse effects do not occur. Mitigation is being required where appropriate to achieve minimal adverse effects, but we do not believe that all bank stabilization projects require mitigation because many projects have minimal effects, in fact often positive effects, on aquatic resources without mitigation. For example, riprap on an eroding barren bank will typically increase habitat diversity and reduce turbidity in downstream waters.
One commenter stated that because erosion has occurred after some projects permitted under this nationwide permit were constructed, the Corps should not reissue it unless it can demonstrate that such projects will perform as expected. Another commenter noted how some projects of inadequate design integrity would eventually wash downstream with potentially adverse effects on water quality, aquatic habitat, public safety, and aesthetics.
The Corps evaluates projects to determine if they are in compliance with Clean Water Act requirements, including whether the project will only result in minimal adverse effects for NWPs, and to ensure that they are not contrary to public health or safety. We believe that the bank stabilization methods employed are generally effective even in cases where there is no reporting to the Corps. Although a washout of shore protection could occur, such unusual flows would also wash out unprotected shorelines and structures or natural features such as trees, rocks, and the like, all of which would wash downstream.
One commenter questioned whether this nationwide permit could be used in lieu of NWP 2 for stabilization projects in artificial canals. Another commenter recommended that this nationwide permit should be used only on artificial canals.
NWP 13 can be used in lieu of NWP 2 where appropriate. However, restricting its use only to artificial canals would unduly restrict its utility.
Several commenters recommended retaining the notification requirements, particularly for those projects in excess of 500 linear feet. Several commenters called for lowering the PCN threshold to 100, 200 or 300 feet to more appropriately address cumulative impacts. One commenter suggested that the cubic yardage limit for notification be 100,000 cubic yards. Several commenters stated that the nationwide permit should specifically mention the types of bank stabilization allowed, with an emphasis on methods that did not include landscaping. Many others recommended excluding certain materials such as gravel, asphalt, tires, automobiles, building rubble, poured concrete, driven sheet piles, and structural timber bulkheads. Two commenters stated that projects authorized under this nationwide permit should not include seawalls or bulkheads on open or natural shorelines and should not allow backfilling for the purpose of creating fast land or reclamation. Three commenters stated that use of concrete rubble should only be used if it meets acceptable riprap standards for size and density, is free of contaminants, is faced with acceptable rock riprap, and has all rebar cut flush with the surface.
We believe the terms and conditions that prohibit discharges in special aquatic sites (including wetlands) prohibit the use of unsuitable and toxic materials, limit the shore stabilization to 1 cubic yard per linear foot, and require that the proposed stabilization be the minimum necessary, are sufficient to alleviate these concerns. In some cases where the adverse effects could be more than minimal (i.e., discharges on more than 500 feet of shoreline, and/or greater than one cubic yard per linear foot of shoreline) notification to the DE is required. Also, where potentially high value aquatic resources may be impacted with less than 500 feet of bank protection, the Corps division can regionally condition NWP 13. The intent is to accommodate a wide range of users, techniques and materials with minimal time delay and maximum protection of valuable wetland resources. NWP 13 is reissued without change.
14. Road Crossing: The Corps proposed no changes to this NWP. Many commenters suggested that this NWP should not be reissued or should be modified for a number of reasons including the following: it should not be used for large road projects with multiple wetland crossings; the breadth of the road crossings are not constrained; the acreage allowance should be reduced; and this NWP is most frequently stacked with other NWPs, causing adverse effects to exceed minimal. A few commenters recommended that a maximum acreage impact limit be applied to large road projects with multiple crossings of waters of the United States (including wetlands and other special aquatic sites).
The Corps regulatory policy regarding linear projects and what constitutes a single and complete crossing is well established (RGL 88-6). Individual channels in a braided stream or individual arms of a large, irregularly-shaped wetland or lake, etc., are not separate waterbodies. For linear projects, the single and complete project requirement for individual NWPs will be applied to a waterbody at a single location. That is, each waterbody impacted by a roadway will be considered a single and complete crossing at that location. Where a roadway intersects a single waterbody such as a meandering river at separate but distinct locations, each crossing is considered a single and complete crossing. The purpose of the "single and complete" language is to preclude situations where one project will repeatedly crisscross one waterbody when such multiple crossings can be practicably avoided.
Several commenters expressed support for this NWP as proposed. Others indicated that there should be no limits on the length or area of a crossing. Two commenters suggested that the NWP 26, 1 to 10 acre provision be incorporated and that acreage be the only controlling limit. Two other commenters recommended the length be increased to 400 linear feet and one suggested that the acreage be increased to acre. A few commenters opposed the inclusion of the "Notification" general condition in this NWP.
We carefully considered the suggestions to limit the width of the roadway as well as to expand the length and maximum acreage for the roadway. We concluded, however, that the limits in the NWP as proposed represent a tested balance. With regard to stacking NWP 14 with other NWPs, we have conditioned this NWP to not allow NWP 18 or NWP 26 to be combined with it for the purpose of expanding the allowable road crossing footprint. In addition, a Corps-only PCN is required any time this NWP is combined with any other NWP. (See discussion on "Stacking of NWPs" in section II above.). NWP 14 is reissued with the modification discussed above.
15. U.S. Coast Guard Approved Bridges: The Corps proposed no changes to this NWP. A few commenters expressed concerns about the impacts associated with the construction of access fills, fill removal, and restoration of preconstruction grades. Another commenter was concerned about revegetation with native species after completion of such preconstruction grade restoration activities. One commenter encouraged inclusion of conditions to require excavation and removal of old approach fills when they have been replaced. Another commenter stated that the impacts related to Coast Guard bridges can be significant and that issuance of the NWP contributes to an incomplete and less than thorough review by the Coast Guard. A few commenters felt that the Corps had inappropriately delegated Section 404 responsibility to another agency.
Based on the requirement of this NWP and the ability of the DE to assert discretionary authority should the nature of the impacts warrant, we believe that this NWP is an efficient means to regulate the construction of bridges. The regulations also allow for the development and inclusion of conditions to address particular project aspects such as removal of old approach fills, revegetation specifications, etc. The comments regarding the delegation of regulatory authority are apparently based on the misinterpretation of the permit language. The Coast Guard has been given the task of reviewing such bridge construction pursuant to section 9 of the Rivers and Harbors Act of 1899. A Department of the Army permit pursuant to section 404 of the Clean Water Act is still required for the discharge of dredged or fill material into waters of the United States associated with the construction of the proposed bridges and causeways. NWP 15 is reissued without change.
16. Return Water From Upland Contained Disposal Areas: The only change the Corps proposed to this NWP was a change in wording to note that, in certain circumstances, dredging may now require a section 404 permit. One commenter requested that the NWP require an NPDES permit. A couple of commenters recommended that the NWP not be applicable to dredged material taken from areas of known sediment contamination or where there is reason to believe that the discharge is contaminated. A few commenters stated that water quality violations could result from the NWP unless it is limited to the activities authorized by, and operating in conformance with, currently valid permits or exemptions. One commenter suggested that all return water be tested for contaminants. A couple of commenters thought that the original text and the clarification were unclear without specifying when the activity may require a section 404 permit relative to the excavation rule, or when a section 10 permit may be required.
This NWP authorizes the return of effluent to waters of the United States from upland contained disposal areas, and is not intended to address the dredging activity. However, a Department of the Army permit pursuant to section 10 is required for structures or work in, or affecting, navigable waters of the United States, as that term is defined in 33 CFR parts 322 and 329. A Section 404 permit is required for any addition or redeposition of dredged material associated with any activity that destroys or degrades a water of the United States as defined in parts 323 and 328, unless the discharger demonstrates to the satisfaction of the Corps or EPA, as appropriate, prior to the discharge, that the activity will not have such an effect. The effluent subject to NWP 16 has been administratively defined as a discharge of dredged material. Based upon Corps experience and knowledge of dredging and disposal operations, we believe that the technology is readily available to control the quality of the return water from contained upland disposal sites. Any adverse environmental effects resulting from this type of activity would be minimal, provided the effluent meets established water quality standards and adequate monitoring of the activity is performed to assure compliance with these standards. With this in mind, it is our intent to provide the states an opportunity to review each activity under this NWP authorization to assure compliance with state water quality standards. We see no need to require additional state review unless the water quality certification for the NWP has been denied. The prospective permittee must receive an individual certification or waiver from states that have denied water quality certification for the NWP authorization. The Corps has no authority to determine NPDES program requirements. NWP 16 is reissued with the proposed changes.
17. Hydropower Projects: The Corps proposed no changes to this NWP. The comments received addressing NWP 17 were all related to the potential impacts associated with hydropower projects and stated the position that NWP 17 is contrary to the NWP program's provision allowing only activities of similar nature and of minimal impacts.
We are maintaining the notification requirement for this NWP to enable us to assess the nature of the impacts associated with each project and whether to exert discretionary authority. In addition, the Federal Energy Regulatory Commission has the responsibility of examining environmental impacts for those small hydropower projects at existing reservoirs. NWP 17 is reissued without change.
18. Minor Discharges: The Corps proposed a modification to the wording of this NWP to clarify how the Corps measures excavation activities for the purpose of determining compliance with the NWP. This was based on existing guidance developed after the Corps revised the definition of "discharge of dredged material" at 33 CFR 323.2(d) to clarify when the Corps regulates incidental discharges of dredged material associated with excavation activities. (See August 25, 1993, Federal Register, 58 FR 45008.) Based on this existing procedure, this clarification does not affect the number and type of activities that are regulated under this NWP. When measuring the quantity of the discharge of dredged or fill material, the Corps will include the volume of any excavated area (i.e., the volume of the substrate excavated) which is below the plane of the ordinary high water mark (OHWM) or high tide line (HTL). Many commenters expressed uncertainty regarding how to measure the 25 cubic yards of discharge authorized by this NWP. Some commenters requested that the allowable area of impact be increased to 2/10 acres. The Corps continues to believe that the current volume and acreage limits are, and have proven to be, appropriate to ensure that the adverse effects are no more than minimal for the purpose of authorization by this NWP and is not changing those limits. We are providing the following guidance to clarify how NWP 18 quantities are measured.
How to determine quantities under NWP 18: NWP 18 applies to all waters of the United States. For projects that are;
Below and waterward of the OHWM or HTL:
Volume: The cubic yardage of any dredged or fill material placed; plus,
The cubic yardage of the substrate excavated.
Acreage: The acreage of any areas that are filled, excavated, flooded and drained.
Landward of the OHWM or HTL:
Volume: Not applicable. Only acreage limits apply.
Acreage: The acreage of any areas that are filled, excavated, flooded and drained.
For projects that are both below and waterward of the OHWM or HTL and that are landward of the OHWM or HTL, the acreage is the sum of the two acreages as determined above, while the volume is that measured below and waterward of the OHWM or HTL. For example, a permittee may place 50 cubic yards in a wetland landward of the OHWM provided the fill does not exceed 1/10 of an acre and the District Engineer determines that the impacts are minimal. In this example, there was no material placed below and waterward of the OHWM or HTL, therefore the cubic yard (volume) limit was zero and not exceeded. Furthermore, the total acreage was less than 1/10 acres. NWP 18 may be combined with NWP 19 to authorize activities in navigable waters of the United States (i.e., Section 10 waters). NWP 18 is issued as proposed.
19. Minor Dredging: The Corps proposed a modification to this NWP to authorize, under section 404 of the Clean Water Act, the incidental discharges associated with the dredging activities in navigable waters of the United States. This was necessary after the Corps revised the definition of "discharge of dredged material" at 33 CFR 323.2(d) to clarify when the Corps regulates incidental discharges of dredged material associated with excavation activities. (See August 25, 1993, Federal Register, 58 FR 45008.) This clarification does not affect the number and type of activities that are regulated under this NWP. Many commenters supported keeping the quantity limit at the existing level. We agree and continue to believe that the 25 cubic yard limit is acceptable. We have allowed and will continue to allow NWPs 18 and 19 to be used for the same project in section 10 navigable waters of the United States. NWP 19 cannot be used in section 404-only waters. We believe that the requirement of NWP 19 that prohibits excavation in wetlands, coral reefs, sites supporting submerged aquatic vegetation, and anadromous fish spawning areas, and the requirement of NWP 18 that requires notification in special aquatic sites, including wetlands, and the requirement of NWP 18 that requires notification in excess of 10 cubic yards, will ensure that impacts resulting from these activities will be minimal. For example no more than 35 cubic yards could be excavated from navigable waters of the United States without a notification to the Corps. Furthermore, no activity between 35 and 50 cubic yards of combined excavation and discharge could occur without a notification to the Corps and a Corps determination that the adverse effects would be minimal. NWP 19 is issued as proposed.
20. Oil Spill Cleanup: The Corps proposed no changes to this NWP. One commenter suggested a regional condition to require that activities be conducted in conformance with the National Response Team Integrated Contingency Plan Guidance. Even though this guidance is used to assist an applicant to develop one plan to satisfy several applicable laws, it is strictly voluntary on the applicant's part to develop one consolidated response plan. The Corps believes it is most important to verify that the response is conducted in accordance with the Spill Control and Countermeasure Plan required by 40 CFR 112.3 and any existing state contingency plan, and that the regional response team (if one exists) concurs with the proposed containment and cleanup effort. This NWP authorizes the structures and fills used to effect the oil spill cleanup. Other Federal and state agencies have lead responsibility to administer oil pollution laws. NWP 20 is reissued without change.
21. Surface Coal Mining Activities: The Corps proposed the consideration of expanding this NWP for mining activities on previously mined lands that have not been subject to restoration. Several comments supported the proposed inclusion of previously mined areas and a few expressed opposition. Some commenters stated that this proposal should not apply to wetlands restored under the Surface Mining Control and Reclamation Act (SMCRA) of 1977 or NWP 27. Another commenter questioned whether the NWP applies to pre-1977 SMCRA. Comments about mitigation presented a wide range of possibilities: Support for on-site mitigation after completion of mining; mitigation ratio should be set at 1:1 on-site as proposed; flexibility is needed to apply mitigation on-site and/or off-site; and mitigate off-site before mining begins; mitigate concurrent with mining. One commenter stated that restricting the mitigation to on-site would economically stop a mining operation. Many commenters opposed the bond, stating that this is already required by the SMCRA and at least some state agencies.
The remining of abandoned areas requires application under Title V of the SMCRA. As with new mining, the Office of Surface Mining (OSM) coordinates such proposals with the Federal and state resource agencies and determines whether or what mitigation is required. The Corps has decided that specific language referencing remining abandoned mines is not required within the nationwide permit text. The NWP, as worded, will allow remining of abandoned mines. The Corps will strongly encourage remining of abandoned mines where the wetlands are of low value, rather than mining new areas with wetlands that were not previously disturbed. The Corps will review the Title V application for compliance with the NWP. The Corps will only require a bond for mitigation when OSM or the state agency has not required a bond. Requiring a bond in certain cases is consistent with existing policy. (See 33 CFR 325.4).
One commenter expressed concern over the area impacted (i.e., ancillary activities). The NWP specifically applies only to the coal excavation area. Additionally, any facilities, such as buildings, to be placed in waters of the United States would require separate authorization by the Corps.
Several commenters desired restrictions such as set-backs, no stream relocations, no impacts to wetlands which would be difficult to replace, and acreage limits. Another requested an exemption from mitigation for certain chemical compositions of the wetland soil. We believe that each case will be so specific that it is best reviewed case-by-case.
A couple of commenters stated that the Corps was delegating its authority to the OSM and that this NWP did not comply with section 404(e). Minimizing duplication of Federal regulation is one of the goals of the President's Wetland Plan and is one of the principal purposes of NWP 21. We believe that the Corps should not duplicate the intensive review performed by OSM in coordination with other Federal and state resource agencies. OSM complies with the same Federal environmental laws, such as National Environmental Policy Act, Fish and Wildlife Coordination Act, Endangered Species Act, and National Historic Preservation Act as the Corps does in executing its regulatory program. The Corps reviews the Title V information to assure that the impact analysis and mitigation are in compliance with the Corps policy and regulations. The NWP authorization is not valid until the mining activity has been authorized by OSM or by a state with an approved Title V program. To assure that the Corps receives a complete application, we have revised the NWP to include a requirement for an OSM or state-approved mitigation plan. NWP 21 is reissued with the modifications described above.
22. Removal of Vessels: The Corps proposed no changes to this NWP. However, a few commenters requested that the term "minor fills" be the same as that for Nationwide Permit 18, and one commenter requested that this NWP require a PCN that would specifically require contacting the State Historic Preservation Officer (SHPO) to ensure against damage to vessels potentially eligible for listing in the National Register. Another commenter requested notification to the SHPO since the Abandoned Shipwreck Act gives states title to, and management authority of, certain shipwrecks.
The criteria described in Nationwide Permit 18 for minor discharges of dredged or fill material could be used as a guide in evaluating the environmental impacts, but is not meant to be a definition of "minor fill". This term is intended to be subject to the DE's interpretation on a case-by-case basis as a project is being evaluated. The existing language of NWP 22 does not allow its use for any ship or vessel that is listed or eligible for listing unless the district determines that the activity complies with the National Historic Preservation Act. The Corps will, in any particular case, coordinate with the SHPO regarding historic properties, including concerns with regard to the Abandoned Shipwreck Act. We believe that the restrictions within this NWP in conjunction with General Condition 12 and the Corps regulations at 33 CFR 330.4(g), are sufficient to protect against damage to historic properties. NWP 22 is reissued with no changes.
23. Approved Categorical Exclusions: The Corps proposed no changes to this NWP. A few commenters supported expansion of Nationwide Permit 23 to cover state environmental program approvals, especially for flood control work, and all emergency work by a public agency.
State programs are not required to comply with NEPA and states have varying environmental protection programs. Therefore, the Corps cannot base a nationwide permit on state approvals as NEPA Categorical Exclusions (CE). Regional and programmatic general permits are effective tools that can be developed at the district level for state programs that meet or exceed the Federal CWA requirements. Emergency work can normally be authorized under other nationwide permits such as NWP 3 and 37, or the Corps emergency permit authority.
A few commenters requested the NWP be regionalized with regional conditions and asked that districts publish public notices for proposed CEs and lists of approved CEs. The Division Engineers have the authority to add regional conditions to any nationwide permit and are currently in the process of considering recommendations for conditions on these nationwide permits. All CEs are available in the Federal Register and we intend to make them available on our Internet homepage which is currently being developed.
A number of commenters opposed continuation of the existing nationwide permit. They stated that the permit is often misused, especially by the Highway Departments. Most of these commenters called for revision of NWP 23 to require periodic review (every 5 years at the renewal of the general permit) and assessment of approved CEs (citing new knowledge and outdated agency Environmental Assessments), limits on the area of wetlands that may be impacted (similar to Nationwide Permit 26), and limiting (to 25-50 feet) or excluding stream channelization. Some commenters called for excluding bridges and culverts in those streams that support fish, and excluding stacked concrete slabs that create low water dams.
The Corps does, upon being furnished a notice of an agency's CE, solicit public comment, and review the CE for approval for authorization by this nationwide permit. We may include conditions for authorization as a part of that approval. This is an ongoing process and the U.S. Coast Guard has recently updated their CEs and requested approval for authorization under the NWP. RGL 96-1 has already been issued for Coast Guard CEs and we will soon publish our findings and determinations in the Federal Register. We will continue to monitor the CEs approved for authorization under this nationwide permit and make adjustments through changes in conditions, new approvals, and removal of previously approved CEs when warranted. General Condition 4 prohibits substantial disruption of movement of aquatic life species indigenous to the waterbody.
Some commenters called for not renewing Nationwide Permit 23 due to misuse, violations of 404(e), and illegal delegation to other agencies of the Corps determination of which projects are subject to Clean Water Act review.
We believe the Corps current review process of the lead agency's decision ensures that the CE is not misapplied. The Corps does not necessarily approve all of an agency's CEs. Only those consistent with the NWP program are approved. Furthermore, in the recent action on the Coast Guard CEs, the Corps requires a PCN for some actions with the potential to result in more than minimal impacts.
One commenter requested that we require a cultural resources inventory before approving CEs.
Compliance with cultural resource requirements is the responsibility of the lead Federal agency. CEs are developed in accordance with NEPA. All other Federal environmental laws and regulations, including the cultural resource and historic preservation laws, must still be satisfied by the agency proposing the CE. NWP 23 is reissued without change.
24. State Administered Section 404 Programs:The Corps proposed no changes to this NWP and the only commenter providing comments specific to the permit expressed support for this nationwide permit as written. NWP 24 is reissued without change.
25. Structural Discharge: Corps proposed clarification that this NWP may be utilized for general navigation purposes. A few commenters recommended issuance of this NWP as proposed. One commenter stated that this NWP should not be reissued because it has not been demonstrated that the adverse environmental effects are only minimal, and that individual permits provide greater protection to environmental resources. We believe the impacts resulting from the portion of these projects regulated by the Corps are typically very small and localized. Any project can be further conditioned to ensure that adverse effects are minimal or mitigated appropriately, if necessary. If it is determined that any particular project would not qualify for this NWP because adverse effects are not minimal, the DE can exercise discretionary authority and instruct the applicant on the procedures to seek authorization under an IP.
One commenter requested clarification of the significance of changing the previously worded "piers and docks" to "mooring cells". Another commenter stated that "docks and piers" should be specifically included, noting the current authorization does include such wording.
We recognize that piers and docks are not mentioned in this NWP; however, they would be covered if their construction methods entailed discharge of material into tightly sealed forms or cells. We do not feel it necessary to specifically include piers and docks, because their construction often requires driving piles, which typically does not require a Section 404 permit. The structure itself may require a Section 10 permit if located in navigable waters of the United States.
One commenter stated that this NWP should include well pads for monitoring, and surveillance wells used for monitoring pollutants and groundwater parameters of aquifers.
We do not believe it is necessary or appropriate to include such uses under this NWP, because Nationwide Permit 18, covering Minor Discharges, would be more suitable.
One commenter noted that this NWP does not propose any limitations. Several others recommended limitations on this NWP, including no more than 20 mooring cells, size thresholds such as less than 8,000 square feet for pile-supported structures, or spacing between piles of at least six feet. Two commenters stated that this NWP should authorize the side-casting of material for placement of the forms or construction of pile caps. One commenter stated that mechanized landclearing for access to the project site for the placement of structural members should be authorized by this NWP. One commenter recommended that this NWP specifically not authorize river boat mooring cells for gambling purposes.
We believe that the actual footprint of project impacts typical of the types discussed in the NWP are limited sufficiently such that further limitations are not necessary. However, each district may implement special conditions or regional general conditions on a case-
by-case basis as deemed necessary. We agree that side-casting of material for construction of pile caps is appropriate provided it is kept to the minimum necessary, that material is not placed in such a manner that it is dispersed by currents or other forces, and that preconstruction contours are maintained. However, we do not believe that mechanized landclearing to access the project site should be authorized under this NWP. Finally, we do not see the significance of differentiating between mooring cells used for general navigation purposes versus those that may be used for mooring of gambling vessels. NWP 25 is reissued with the proposed clarification.