department of defense...i. overview in response to the july 21, 1999, federal register notice, we...

Thursday,

March 9, 2000

Part III

Department ofDefenseDepartment of the Army, Corps ofEngineersFinal Notice of Issuance and Modificationof Nationwide Permits; Notice

VerDate 07<MAR>2000 16:01 Mar 08, 2000 Jkt 190000 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09MRN2.SGM pfrm08 PsN: 09MRN2

12818 Federal Register / Vol. 65, No. 47 / Thursday, March 9, 2000 / Notices

DEPARTMENT OF DEFENSE

Department of the Army, Corps ofEngineers

Final Notice of Issuance andModification of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.ACTION: Final notice.

SUMMARY: The Corps of Engineers(Corps) is issuing 5 new NationwidePermits (NWPs) and modifying 6existing NWPs to replace NWP 26which expires on June 5, 2000. TheCorps is also modifying nine NWPgeneral conditions and adding two newNWP general conditions. The new NWPgeneral conditions will increaseprotection of designated criticalresource waters and waters of theUnited States within 100-yearfloodplains. In December 1996, theCorps decided to replace NWP 26,which authorizes discharges of dredgedor fill material into headwaters andisolated waters of the United States,with activity-specific NWPs. The newand modified NWPs authorize many ofthe same activities that NWP 26authorized, but the new and modifiedNWPs are activity-specific, with termsand conditions to ensure that theseactivities result in minimal adverseeffects on the aquatic environment. Thenew and modified NWPs willsubstantially increase protection of theaquatic environment, while efficientlyauthorizing activities with minimaladverse effects on the aquaticenvironment. The maximum acreagelimits of most of the new and modifiedNWPs is 1⁄2 acre. Most of the new andmodified NWPs require notification tothe district engineer for activities thatresult in the loss of greater than 1⁄10 acreof waters of the United States. Thisnotice also constitutes the Corpsapplication to States, Tribes, and theEnvironmental Protection Agency (EPA)for Section 401 water qualitycertification (WQC) and Coastal ZoneManagement Act (CZMA) consistencydeterminations. These agencies have 90days to determine if the new andmodified NWPs meet state or Tribalwater quality standards and areconsistent with state coastal zonemanagement plans.DATES: The new and modified NWPsand general conditions will becomeeffective on June 5, 2000. The expirationdate for NWP 26 is June 5, 2000.ADDRESSES: HQUSACE, ATTN: CECW–OR, 20 Massachusetts Avenue, NW,Washington, DC 20314–1000.FOR FURTHER INFORMATION CONTACT: Mr.David Olson or Mr. Sam Collinson at

(202) 761–0199 or access the Corps ofEngineers Regulatory Home Page at:http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.SUPPLEMENTARY INFORMATION:

BackgroundIn the December 13, 1996, issue of the

Federal Register (61 FR 65874) theCorps reissued NWP 26 for a period oftwo years and announced its intentionto replace NWP 26 with activity-specificNWPs. NWP 26 authorizes discharges ofdredged or fill material into headwatersand isolated waters, provided thedischarge does not result in the loss ofgreater than 3 acres of waters of theUnited States or 500 linear feet ofstream bed. Headwaters are non-tidalstreams, lakes, and impoundments thatare part of a surface tributary system tointerstate or navigable waters of theUnited States with an average annualflow of less than 5 cubic feet per second.Isolated waters are non-tidal waters ofthe United States that are not part of asurface tributary system to interstate ornavigable waters and are not adjacent tosuch surface tributary systems tointerstate or navigable waters.

In the July 1, 1998, issue of theFederal Register (63 FR 36040) theCorps published its initial proposal toreplace NWP 26, including 6 newNWPs, modifying 6 existing NWPs,modifying 6 NWP general conditions,and adding one new NWP generalcondition. In the October 14, 1998, issueof the Federal Register (63 FR 55095),the Corps published a supplementaryproposal to limit the use of the proposednew and modified NWPs in 100-yearfloodplains, impaired waters, anddesignated critical resource waters. Inthe October 14, 1998, Federal Registernotice, the Corps also announced thewithdrawal of the proposed NWP formaster planned development activitiesand the extension of the expiration dateof NWP 26 to September 15, 1999. TheCorps also announced, in the October14, 1998, Federal Register notice, itsintent to solicit additional comments onthe proposed new and modified NWPsand regional conditions proposed byCorps districts.

As a result of the comments receivedin response to the July 1, 1998, andOctober 14, 1998, Federal Registernotices, the Corps made changes to theproposed NWPs and general conditions.The Corps also modified andreproposed the three new NWP generalconditions to limit the use of NWPs in100-year floodplains, impaired waters,and designated critical resource waters.The draft NWPs and general conditionswere published in the July 21, 1999,issue of the Federal Register (64 FR

39252) for a 45-day comment period.Concurrent with this Federal Registernotice, Corps districts proposed thelatest drafts of their proposed regionalconditions for the new and modifiedNWPs. In the September 3, 1999, issueof the Federal Register (64 FR 48386),the Corps announced that the commentperiod for the draft NWPs and generalconditions was extended an additional30 days to provide a 75-day commentperiod. The comment period for the July21, 1999, Federal Register notice endedon October 7, 1999. In the September 3,1999, Federal Register notice, the Corpsalso announced that the expiration dateof NWP 26 was extended to January 5,2000.

As a result of the number ofsubstantial comments received inresponse to the July 21, 1999, FederalRegister notice and the need foradditional time to review thosecomments and develop the final NWPsand general conditions, the Corps issuedanother Federal Register notice onDecember 15, 1999 (64 FR 69994). ThisFederal Register notice announced arevised expiration date for NWP 26 andthe process for accepting NWP 26 PCNs.The expiration date for NWP 26 wasextended to April 14, 2000.

Since the schedule published in theDecember 15, 1999, Federal Registernotice has changed, we are extendingthe expiration date of NWP 26 to June5, 2000. NWP 26 PCNs submitted on orbefore March 9, 2000, (whether requiredor not) will be reviewed under theexisting terms and conditions of NWPs.If those activities are authorized byNWP 26, their authorizations will bevalid until February 11, 2002. If theactivity is under construction or undercontract prior to February 11, 2002, thepermittee will have 12 additionalmonths to complete the authorizedactivity. NWP 26 PCNs for activities thatrequire notification which are submittedafter March 9, 2000, will be reviewedunder the new and modified NWPs orother types of DA authorization, such asindividual permits. NWP 26 activitiesthat do not require a PCN are authorizedby NWP 26 until June 5, 2000. For thoseNWP 26 activities that do not requirenotification, the permittee has 12months to complete the work ifconstruction begins or is under contractbefore June 5, 2000.

The terms and limits of the new andmodified NWPs are intended toauthorize activities that have minimaladverse effects on the aquaticenvironment, individually andcumulatively. Most of the new NWPsauthorize activities in non-tidal watersof the United States, excluding non-tidalwetlands adjacent to tidal waters. The


12819Federal Register / Vol. 65, No. 47 / Thursday, March 9, 2000 / Notices

acreage limit for most of the new andmodified NWPs is 1⁄2 acre. For the newand modified NWPs, the Corps hasestablished pre-construction notification(PCN) thresholds to ensure that anyactivity that potentially may have morethan minimal adverse effects on theaquatic environment is reviewed by adistrict engineer on a case-by-case basis.Most of the new NWPs requiresubmission of a PCN for discharges ofdredged or fill material resulting in theloss of greater than 1⁄10 acre of waters ofthe United States. Regional conditionsmay be added to the NWPs by divisionengineers to lower notificationthresholds.

The new and modified NWPs issuedtoday will become effective on June 5,2000. This Federal Register noticebegins the 90-day Clean Water ActSection 401 water quality certification(WQC) and Coastal Zone ManagementAct (CZMA) consistency determinationprocesses. Because of the changes to theproposed new and modified NWPs,including the general conditions, wehave increased the normal 60-day WQCand CZMA consistency determinationprocesses to 90 days. During this 90-dayperiod, Corps divisions and districtswill finalize their regional conditionsfor the new and modified NWPs.

Discussion of Public Comments

I. Overview

In response to the July 21, 1999,Federal Register notice, we receivedover 1,700 comments. We reviewed andfully considered all of these comments.Most of the commenters expressedopposition to the proposed NWPs, but afew commenters indicated support forthese NWPs. One commenter stated thatNWP 26 should be retained without anychanges. A number of commenterssupport the current NWP program,because data collected by the Corpsduring Fiscal Year (FY) 1997 indicatesthat there are net gains in aquaticresources because of the Corpsmitigation requirements. Thesecommenters indicated that this net gaindemonstrates that the current NWPprogram results only in minimal adverseeffects on the aquatic environment.

After considering the commentsreceived in response to the July 21,1999, Federal Register notice, we havemade several important changes to thenew and modified NWPs. For most ofthese NWPs, we have established a 1⁄2acre limit. Notification to the districtengineer will be required for mostactivities that result in the loss of greaterthan 1⁄10 acre of waters of the UnitedStates. For NWPs 39, 40, 42, and 43, wehave imposed a 300 linear foot limit for

filling and excavating stream beds. Wehave also increased the notificationreview period to 45 days. We haverevised nine general conditions andadded two new general conditions. Thenew NWP general conditions limitactivities in designated critical resourcewaters and fills in waters of the UnitedStates within 100-year floodplains. Allabove-grade fill under NWPs 29, 39, 40,42, 43, and 44 is prohibited within theFEMA-mapped 100-year floodplainbelow the headwaters of any stream.Within the headwaters, above-grade fillis prohibited within the FEMA-mappedregulatory floodway, and any above-grade fill in the flood fringe must meetFEMA standards.

These new restrictions on use of theNWPs will substantially increase theprotection of the Nation’s aquaticenvironment. These revised NWPscontinue a trend by the Corps ofEngineers of enhancing the protection ofthe aquatic environment through theNWP program. In 1977 the predecessorto NWP 26 authorized unlimited fill inheadwaters and isolated waters withoutany notification of the Corps. In 1984the Corps established a maximumproject specific impact limit of 10 acresand a notification of the Corps for anyimpact greater than 1 acre. In 1996, wereduced these project specific limits to3 acres maximum and 1⁄3 acre fornotification of the Corps. To furtherensure that the NWP program properlyprotects the aquatic environment, theCorps is conducting a ProgrammaticEnvironmental Impact Statement, whichwill be completed in early 2001. Toensure full protection of endangeredspecies, the Corps is formally consultingwith the U.S. Fish and Wildlife Serviceand the National Marine FisheriesService on the NWP program.

All of these substantial improvementswill increase costs to applicants to somedegree and will increase the fundingneeded by the Corps to maintain ourcurrent level of service to the public.Based on a report prepared by the CorpsInstitute for Water Resources (IWR) inresponse to the Corps FY 2000Appropriations Act, the changes to theNWP program announced today willincrease direct costs for permitapplicants by about $20 million peryear. Further, based on the IWR report,the Corps would need about $6 millionin additional funding to maintaincurrent levels of service to the public.We believe the changes are necessary toensure the statutory requirement thatgeneral permits, including NWPs, willhave no more than minimal adverseeffects on the aquatic environment.

II. General Comments

In the following discussion, where thecomments and responses were the sameas for the July 21, 1999, Federal Registernotice, we referred to the July 21, 1999,Federal Register notice instead ofrepeating those responses.

Many commenters objected to theproposed NWPs for the followingreasons: (1) The proposed NWPs are toocomplex; (2) the proposed NWPs arecontrary to the Congressional intent ofSection 404(e) of the Clean Water Act;(3) the proposed NWPs are contrary tothe Administration’s 1993 WetlandsPlan, which states that Federalregulatory programs should be fair,flexible, and effective; (4) the proposedNWPs are contrary to the 1998 CleanWater Action Plan, which states thatduplication between Federal, state, andlocal agencies and Tribal governmentsshould be reduced wherever possible;(5) the conditions of these NWPs willcause many activities with minimaladverse effects on the aquaticenvironment to be processed asindividual permits; and (6) these NWPswill result in unnecessary and costlyburdens on the regulated public,increase delays, and increase the Corpsworkload without providing anybenefits.

We have reduced the complexity ofthese NWPs as much as possible bymaking the scope of applicable watersfor most of the new NWPs the same andestablishing similar PCN thresholds. Inaddition, we have eliminated theindexed acreage limits from NWPs 39and 40 and established a 1⁄2 acre limitfor these NWPs. However, somecomplexity is unavoidable becausedifferent activities in waters of theUnited States do not have the sameeffects on the aquatic environment andeach NWP must have differentconditions to address those dissimilarimpacts. The new and modified NWPsare conditioned to ensure that onlythose activities that have minimaladverse effects on the aquaticenvironment are authorized by thesepermits.

The new and modified NWPs are notcontrary to Section 404(e) of the CleanWater Act, because each NWPauthorizes activities that are similar innature, with terms and conditions toensure that those NWPs authorize onlyactivities with minimal adverse effectson the aquatic environment. TheseNWPs still provide an expeditedauthorization process when comparedto the standard permit process, becausethe district engineer must respond to theapplicant within 45 days of the receiptdate for a complete preconstruction



notification (PCN). The 45-day PCNreview period is shorter than theaverage evaluation time for individualpermits, which was 100 days in FY1999.

The new and modified NWPs complywith the President’s 1993 WetlandsPlan, by allowing the Corps regulatoryprogram to continue to provide effectiveprotection of wetlands and other aquaticresources and avoid unnecessaryimpacts to private property, theregulated public, and the aquaticenvironment. The new and modifiedNWPs, including the new and modifiedgeneral conditions, will more clearlyaddress individual and cumulativeadverse effects on the aquaticenvironment and ensure that thoseadverse effects are minimal. The newand modified NWPs address specificapplicant group needs and provide morepredictability and consistency to theregulated public. During thedevelopment of these NWPs, werecognized the concerns of the naturalresource agencies and environmentalinterest groups for potential adverseeffects on the aquatic environmentresulting from activities authorized bythese NWPs and the regulated public’sneed for certainty and flexibility in theNWP program.

Although certain aspects of the newand modified NWPs duplicate existingFederal, state, and local agencyprograms, such duplication is notcontrary to the 1998 Clean Water ActionPlan because it provides additionalprotection for the aquatic environment.While some state and local governmentsmay address some of the same issuesthat are addressed by the NWPs andgeneral conditions, there are many areasof the country where those issues arenot addressed. Therefore, we believe itis necessary to add certain conditions tothe NWPs to address potential adverseeffects to the aquatic environment. Forexample, General Condition 9 requires awater quality management plan forcertain NWP activities, unless the stateor Tribal Section 401 agency requires anadequate water quality managementplan. If the state or Tribe does notadequately address impacts to waterquality through its water qualitycertification process, the districtengineer can require additionalmeasures such as stormwatermanagement facilities and vegetatedbuffers to protect water quality. Thereare circumstances where the Corpsneeds to consider more stringent NWPrequirements to ensure that the adverseeffects to the aquatic environment areminimal, individually andcumulatively.

We agree that the terms andconditions of the new and modifiedNWPs may cause some activities withminimal adverse effects on the aquaticenvironment to be subject to theindividual permit process. It isimportant to note that aquatic resourcefunctions and values differ greatlyacross the country. When developingNWPs that have national applicability,there will be many parts of the countrywhere the terms and limits of the NWPswill not authorize some activities thathave minimal adverse effects on theaquatic environment. In these areas,district engineers can issue regionalgeneral permits in the future to provideexpedited authorization for categories ofactivities with minimal adverse effectson the aquatic environment.

However, for six months after thepublication date of the new andmodified NWPs, district engineers willnot issue regional general permits orletters of permission (LOPs) thatexplicitly authorize the same activitiesas the new and modified NWPs. This sixmonth period will allow Corps districtsto assess how effectively the new andmodified NWPs authorize activitieswith minimal adverse effects on theaquatic environment, individually andcumulatively.

As required by the Energy and WaterDevelopment Appropriations Act, 2000,we have conducted a study of theworkload and compliance costs of theNWPs, including the new generalconditions, proposed in the July 21,1999, Federal Register notice. Thereport for this study was finalized inJanuary 2000. This report is available onthe Internet at the Corps headquartersregulatory home page.

The workload and compliance costsstudy determined that the proposalpublished in the July 21, 1999, FederalRegister would increase the number ofstandard individual permit applicationsreceived by the Corps by 4,429 per year.This and other workload increaseswould result in direct compliance costsincurred by the regulated public by anestimated $46 million annually. Thestudy also examined indirectcompliance costs (i.e., opportunitycosts) of the July 21, 1999, proposal. Theindirect compliance costs include theopportunity costs that result fromincreases in permit processing timesand an estimate of foregonedevelopment value caused by thevegetated buffer requirement. The studyestimates that the processing times forstandard permits would steadilyincrease each year if the July 21, 1999,proposal were to be implemented andCorps budget resources are notincreased. Within five years, the average

standard permit processing time andnumber of backlogged permitapplications would increase three tofour times the levels measured in FY1998.

The study also examined analternative replacement NWP packagethat included lowering the acreage limitof the new and modified NWPs to 1⁄2acre and withdrawing the threeproposed new NWP general conditions.The alternative replacement NWPpackage would result in 40% fewerstandard permit applications and 30%less direct compliance costs than theJuly 21, 1999, proposal would. After fiveyears, the standard permit processingtimes and permit application backlogwould be approximately 1⁄2 of thatestimated for the proposal published inthe July 21, 1999, Federal Register.

Many commenters objected to theCorps statement in the July 21, 1999,Federal Register notice that NWPs areoptional permits, and that if they do notwant to comply with the terms andconditions of the NWPs, then they canrequest an individual permit. Numerouscommenters indicated that the new andmodified NWPs are likely to result indecreased protection of the aquaticenvironment because of the highernumbers of individual permits and agreater workload for the Corps thatwould result if these NWPs wereimplemented as proposed. Somecommenters also stated that the newand modified NWPs would also resultin less protection of the aquaticenvironment because projectproponents would have less incentive tobuild projects with smaller impacts toaquatic resources due to the strictacreage limits, notificationrequirements, and conditions. Incontrast, one commenter said thatdevelopers will modify their projects tocomply with the new and modifiedNWPs. Another commenter said that thecosts to the Corps and regulated publicthat are imposed by the new andmodified NWPs will be offset by theadditional environmental protectionprovided by those NWPs.

NWPs provide an expedited Corpspermit process for activities that haveminimal adverse effects on the aquaticenvironment, individually andcumulatively. The NWPs areconditioned to ensure that onlyactivities with minimal adverse effectsare authorized. If a prospectivepermittee cannot comply with all of theterms and conditions of the NWPs, thenhe or she can request another form ofDepartment of the Army (DA)authorization, such as a regional generalpermit or a standard individual permit.



We believe that the terms andconditions of the new and modifiedNWPs, including the 1⁄2 acre limit and1⁄10 acre PCN threshold, aresubstantially more protective of theaquatic environment. The terms andconditions of these NWPs will ensurethat only activities with minimaladverse effects on the aquaticenvironment are authorized by NWPs.Many project proponents will designtheir projects to comply with the 1⁄2 acrelimit so that they can qualify for anNWP and receive authorization morequickly than they could through thestandard permit process.

Many commenters stated that the newand modified NWPs would cause morethan minimal adverse effects on theaquatic environment, individually andcumulatively. A few commenters saidthat the proposed NWPs do not complywith the requirement that generalpermits authorize only activities that aresimilar in nature. A number ofcommenters objected to the NWPs,because they provide no opportunity forthe public to comment on individualprojects.

We have developed terms andconditions for the new and modifiedNWPs to ensure that they authorize onlythose activities that result in minimalindividual or cumulative adverse effectson the aquatic environment. The newand modified NWPs have PCNthresholds that require prospectivepermittees to notify district engineersprior to conducting activities that couldresult in more than minimal adverseeffects. Most of the new and modifiedNWPs require notification to districtengineers for discharges resulting in theloss of greater than 1⁄10 acre of waters ofthe United States. Division engineerscan regionally condition these NWPs tolower notification thresholds, protecthigh value waters, or add additionalrestrictions to ensure that authorizedactivities result only in minimal adverseeffects. District engineers will reviewPCNs on a case-by-case basis todetermine if the adverse effects of theproposed work are minimal. If theadverse effects of a particular activityare more than minimal, the districtengineer can either add conditions tothe NWP authorization to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the proposedwork.

Each of the new and modified NWPsauthorizes activities that are similar innature, in full compliance with section404(e) of the Clean Water Act. Thisissue was discussed in detail in the July21, 1999, Federal Register notice (64 FR

39263), and we have not changed ourposition on this matter.

The intent of general permits,including NWPs, is to efficientlyauthorize activities that have minimaladverse effects on the aquaticenvironment. These activities areusually non-controversial, and wouldgenerate few or no comments from thepublic if they were subject to thestandard permit process. Conductingfull public interest reviews for activitieswith minimal adverse effects on theaquatic environment wouldsubstantially increase the Corpsworkload with little or no added valuefor the aquatic environment.

A large number of commentersobjected to the proposed NWPs, statingthat the new and modified NWPs wouldresult in significant wetland losses.Many commenters said that the new andmodified NWPs would undermine theAdministration’s goal of net gain inwetland acreage stated in the CleanWater Action Plan.

The new and modified NWPs will notresult in significant losses of wetlandsbecause they are conditioned to requireprospective permittees to avoid andminimize impacts to waters of theUnited States on-site to the maximumextent practicable (see GeneralCondition 19). In addition, the 1⁄2 acrelimit will substantially reduce wetlandlosses. Compensatory mitigation is oftenrequired for activities that requirenotification to the district engineer,which offset losses of wetlands andother aquatic habitats so that significantlosses of wetlands do not occur as aresult of the NWP program.

As discussed in the July 21, 1999,Federal Register notice, the NWPprogram supports the Administration’sgoal of no net loss and is not contraryto the goals of the Clean Water ActionPlan.

Several commenters objected to theproposed NWPs, stating that the NWPsplace too much reliance on the assertionof discretionary authority by districtengineers. They said that this processdoes not provide adequate protection ofthe aquatic environment. Anothercommenter stated that the proposedNWPs are inappropriately based on theintent of the prospective permittee,instead of potential impacts to aquaticresources. One commenter indicatedthat there is too much overlap betweenthe new and modified NWPs, whichwould be confusing to permitapplicants.

We disagree with these commenters,because the notification process allowscase-by-case review of those activitiesthat have the potential for more thanminimal adverse effects on the aquatic

environment. If the adverse effects ofthe proposed activity are more thanminimal, then the district engineer caneither add special conditions to theNWP authorization to ensure that theactivity results in minimal adverseeffects or exercise discretionaryauthority and require an individualpermit. This process providessubstantial protection for the aquaticenvironment.

The new and modified NWPs areactivity-specific to satisfy therequirements of section 404(e) of theClean Water Act. These NWPs addressimpacts to the aquatic environment,because they are limited to certain typesof waters and are conditioned to ensurethat the adverse effects resulting fromthe authorized work are minimal,individually and cumulatively. Sincethese NWPs are activity-specific, theyhave to reflect specific categories ofwork that are conducted by individualsof certain occupations.

Although there is some overlapbetween the activities authorized by thenew and modified NWPs, suchredundancy is necessary because ourintent was to develop NWPs thatauthorize single and complete projectsgenerally without having to resort tousing multiple NWPs. For instance,NWP 39 authorizes most features ofresidential, commercial, or institutionaldevelopments, including road crossingsand stormwater management facilities.

Several commenters stated that theNWPs should only authorize activitiesthat are water dependent. One of thesecommenters said that limiting the NWPsonly to water dependent activitieswould result in a regulatory programthat is easier to administer and result inwetland gains. Some commentersindicated that the proposed NWPs donot comply with the Section 404(b)(1)guidelines.

We addressed the issue of waterdependency in the preamble of the July21, 1999, Federal Register notice andhave not changed our position on thisissue. The new and modified NWPscomply fully with the requirements forgeneral permits in the Section 404(b)(1)guidelines (see 40 CFR 230.7).

A few commenters opposed the newand modified NWPs because they saidthat the Corps has failed to define theterm ‘‘minimal effects’’ in anunderstandable or meaningful way.Many commenters stated that theminimal adverse effects criterion for theNWPs is too subjective and that anassessment procedure that considers thesize of impacts and quality of watersmust be used instead.

The term ‘‘minimal effect’’ as it isused in the context of general permits,



including NWPs, cannot be simplydefined. The terms and conditions ofgeneral permits are established so thatthose permits authorize most activitiesthat result in minimal adverse effects onthe aquatic environment.Preconstruction notifications are animportant mechanism to ensurecompliance with the minimal adverseeffect requirement. Case-specific specialconditions and regional generalconditions are also important foraddressing site-specific and regionalconcerns for the aquatic environmentand ensuring that the NWPs authorizeonly activities with minimal adverseeffects. For activities that requirenotification to the district engineer, theminimal adverse effects determinationrequires consideration of site-specificfactors, such as the quality of watersthat may be impacted by the proposedwork, the functions and values of thosewaters, the geographic setting of theproposed work, and other factors. Theminimal adverse effects criterion mustbe subjective, due to the complexity ofthe analysis required.

Two commenters suggested issuingthe new NWPs with an expiration dateof February 11, 2002, so that theseNWPs will expire on the same day asthe current NWPs. One commenter saidthat the new NWPs should bereevaluated when the current NWPs arereevaluated to determine if the use of allNWPs will result in more than minimalimpacts. Two commentersrecommended allowing NWP 26 toexpire in January 2000 and not issuingthe new NWPs until the next NWPreissuance in 2002. In the interim,individual permits would be requiredfor activities that do not qualify for anyof the current NWPs.

The new and modified NWPs issuedtoday will expire on June 5, 2005 (i.e.,five years from their effective date).However, when the current NWPs areproposed for reissuance in 2002, thenew and modified NWPs are likely to bepart of that proposal, so that all of theNWPs will be on the same five yearcycle for review. We do not agree withthe third comment of the previousparagraph. Allowing NWP 26 to expireprior to the effective date of the new andmodified NWPs would be unfair to theregulated public.

Several commenters requested thatthe expiration date for NWP 26 shouldbe extended to the expiration date of thecurrent NWPs to ensure that NWP 26 isavailable until the effective date of thenew and modified NWPs.

We do not agree that it is necessaryto extend the expiration date of NWP 26to February 11, 2002, because the newand modified NWPs will become

effective on June 5, 2000. Keeping NWP26 in place while the new and modifiedNWPs are effective would be contrary tothe Corps goal of replacing NWP 26with activity-specific NWPs.

One commenter suggested that theCorps clarify in this Federal Registernotice that activities authorized by NWP26 prior to the expiration date willcontinue to be authorized by NWP 26for 12 months, provided the permitteehas commenced construction or isunder contract to commenceconstruction. Another commenterrecommended changing the 12-monthgrandfather provision for the NWPs to24 months to provide adequate time forthe completion of transportationprojects.

A permittee who receives an NWP 26authorization prior to the expirationdate will have up to 12 months tocomplete the authorized activity,provided the permittee commencesconstruction, or is under contract tocommence construction, before the dateNWP 26 expires (see 33 CFR 330.6(b)).Except as indicated below, thisprovision applies to all NWPauthorizations unless discretionaryauthority has been exercised on a case-by-case basis to modify, suspend, orrevoke the NWP authorization inaccordance with 33 CFR 330.4(e) and 33CFR 330.5(c) or (d). We do not agree thatit is necessary to increase the timeperiod for the grandfathering provisionfrom 12 months to 24 months. However,anyone who submitted a NWP 26 PCNon or before March 9, 2000, will haveuntil February 11, 2003, to complete thework, provided the permittee receivesan NWP 26 verification and hascommenced construction or signed aconstruction contract prior to February11, 2002.

Jurisdictional IssuesIn response to the July 21, 1999,

Federal Register notice, we receivedmany comments concerning the scopeof the Corps regulatory authority. Thesecomments addressed excavationactivities in waters of the United Statesand whether ephemeral streams,drainage ditches, and certain othercategories of waterbodies are waters ofthe United States. Today’s actionaddresses only NWPs, and in no wayaffects or alters the geographic oractivities-based jurisdiction of the CWAnor is it intended to create new policyrelated to such jurisdiction.

Many commenters said that the Corpsis ignoring recent court decisions byincluding excavation activities asregulated activities in the text of thenew and modified NWPs. Thesecommenters cited the recent decision by

the United States Court of Appeals forthe District of Columbia which upheldthe United States District Court for theDistrict of Columbia’s decision in theAmerican Mining Congress v. Corps ofEngineers lawsuit. This lawsuitchallenged the Corps and EPA’s reviseddefinition of ‘‘discharge of dredgedmaterial’’ that was promulgated onAugust 25, 1993 (58 FR 45008). Therevised definition of ‘‘discharge ofdredged material’’ was overturnedbecause the District Court held that therule was outside of the agencies’statutory authority and contrary to theintent of Congress by asserting CleanWater Act jurisdiction over activitieswhere the only discharge associatedwith the activity is ‘‘incidentalfallback.’’ These commenters requestedthat the Corps remove all references toexcavation activities from the new andmodified NWPs. Two commentersstated that the reference to excavationactivities in the new and modifiedNWPs requires project proponents tosubmit a notification to the Corps todetermine if a Corps permit is required.One commenter said that the finalNWPs should contain guidance thatexplains when excavation is a regulatedactivity. This commenter alsorecommended that the Corps clarifyhow excavation activities are includedin the calculation of acreage loss ofwaters of the United States, todetermine if a particular activityexceeds PCN thresholds or NWP acreagelimits.

The agencies revised their regulationson May 10, 1999, to respond to theresults of the American MiningCongress lawsuit (64 FR 25120). It isimportant to recognize that not allexcavation activities in waters of theUnited States are conducted so that onlyincidental fallback occurs. Excavationactivities that result in the redeposit ofdredged material into waters of theUnited States other than incidentalfallback require a Section 404 permit.For example, excavated material may betemporarily stockpiled in waters of theUnited States before it is removed.Excavation activities that result only indischarges identified by the Corps as‘‘incidental fallback’’ do not require aSection 404 permit. However, allexcavation activities in Section 10navigable waters require Corps permitsunder section 10 of the Rivers andHarbors Act of 1899. We have retainedthe excavation language in the new andmodified NWPs and the definition of‘‘loss of waters of the United States’’because some excavation activities inSection 404 only waters of the UnitedStates result in discharges that still



require a Section 404 permit. Theseactivities may be authorized by NWPs.NWPs issued under the Corps Section10 authority also authorize excavationactivities in navigable waters of theUnited States. No permit is required forexcavation activities that do not meetthe definition of discharge of dredged orfill material. As with any activity inwaters of the United States, a landownerwho is uncertain whether their activityneeds a permit may contact the Corps.

Two commenters noted that astatement in the July 21, 1999, FederalRegister notice (64 FR 39276)concerning excavation activities isinaccurate and misleading. Thisstatement said that excavation activitiesthat result in the replacement of anaquatic area with dry land or change thebottom elevation of a waterbody requirea Section 404 permit. These commenterssaid that this statement is actually thedefinition of ‘‘fill material’’ and thatexcavation cannot, by itself, result in thereplacement of an aquatic area with dryland or change the bottom elevation ofa waterbody.

We agree that the statement in theFederal Register is inaccurate and haveincluded clarification concerning whenexcavation activities require a Section404 and/or a Section 10 permit from theCorps (see the above discussion).Excavation activities can change thebottom elevation of a waterbody byremoving material and increasing thedepth of the waterbody. Increasing thedepth of a waterbody without associateddischarges of dredged material otherthan incidental fallback does not requirea Section 404 permit, but a Section 10permit would be required if the activityis in Section 10 waters. However, anexcavation activity that involvesredeposit of dredged material intowaters of the United States other thanincidental fallback or involves thedischarge of fill material that increasesthe bottom elevation of a waterbody orcreates dry land requires a Section 404permit (unless the activity qualifies fora Section 404(f) exemption).

A number of commenters stated thatthe Corps does not have authority toregulate discharges into ephemeralstreams because these watercourses, bydefinition, contain water only brieflyand therefore are not waters of theUnited States. One of these commentersnoted that 33 CFR 328.3 includesintermittent streams, but does notinclude ephemeral streams. A fewcommenters remarked that the Corpshas not explained how an ordinarywater mark can be present in awatercourse that has water flow onlyduring a short time after rain events.These commenters assert that under

ordinary circumstances, ephemeralwatercourses do not have flowing waterand cannot develop an ordinary highwater mark (OHWM). They said that theCorps needs to define what constitutesan ‘‘ordinary flow’’ in an ephemeralwatercourse that establishes an OHWMand what indicators are to be used todetermine the presence and location ofthe OHWM. In addition, thesecommenters stated that the Corpscannot use peak flows and flood stagesin lieu of ordinary flows and the Corpscannot use cut banks, shelving, or debristhat is influenced only by peak flows orflooding.

An ephemeral stream is a water of theUnited States, provided it has anOHWM. An ephemeral stream that doesnot have an OHWM is not a water of theUnited States. The frequency andduration at which water must be presentto develop an OHWM has not beenestablished for the Corps regulatoryprogram. District engineers use theirjudgement on a case-by-case basis todetermine whether an OHWM ispresent. The criteria used to identify anOHWM are listed in 33 CFR 328.3(e).

Several commenters said that theCorps can only exercise jurisdictionalauthority over those ephemeral watersthat are tributaries to waters of UnitedStates. These commenters said that thelow frequency of water flows in thesewatercourses requires the Corps todefine criteria and circumstances todetermine whether ephemeralwatercourses are tributaries to waters ofthe United States. Some commentersalso stated that the Corps has notdemonstrated how ephemeral streamshave any nexus to interstate commerceor how discharges of dredged or fillmaterial into those watercourses wouldaffect interstate commerce.

We agree that ephemeral streams thatare tributary to other waters of theUnited States are also waters of theUnited States, as long as they possess anOHWM. The upstream limit of waters ofthe United States is the point where theOHWM is no longer perceptible (see 51FR 41217). Ephemeral streams that arepart of an interstate surface tributarysystem are waters of the United States,because they are an integral part of thatsurface tributary system, whichsupports interstate commerce.

Three commenters stated that theproposed NWPs illegally assertjurisdiction over drainage ditches. Threecommenters objected to a statement inthe July 21, 1999, Federal Registernotice that drainage ditches constructedin waters of the United States remainwaters of the United States. Thesecommenters said that if a drainage ditchconverts a water of United States to a

non-jurisdictional upland, the drainageditch would not be a water of UnitedStates unless the area remains a wetlandor other type of water of United States.These commenters also objected to theCorps assertion that non-tidal drainageditches are waters of the United Statesif they extend the OHWM of an existingwater of the United States. They saidthat this position is contrary topreamble to November 13, 1986, finalrule for the Corps regulatory program(51 FR 41217) and that this changerequires justification. One commenterrequested that the Corps clarify whetherthe entire ditch becomes jurisdictional ifthe OHWM becomes extended withinthe ditch or whether jurisdiction isextended only to that portion of theditch that develops an OHWM. Twocommenters asked for clarificationwhether a drainage ditch that runsthrough a series of uplands and watersof the United States is jurisdictional.One commenter asked how an OHWMthat develops within a drainage ditchwould be determined to be due toordinary flows, not peak flows orflooding.

A drainage ditch constructed in astream, wetland, or other water of theUnited States remains a water of theUnited States, provided an OHWM isstill present. Since drainage ditchesconstructed in waters of the UnitedStates are constructed either bychannelizing a stream or excavating thesubstrate to improve drainage, it isunlikely that the drainage ditches willbecome dry land unless the hydrology isremoved by some other action. Districtengineers will determine, on a case-by-case basis, whether a particular area isa water of the United States. If theconstruction of a drainage ditch haslegally converted the entire area to dryland, then the area drained is not awater of the United States, however, inmost cases the drainage ditch wouldremain a water of the United States.

The statement that non-tidal drainageditches are waters of the United Statesif they extend the OHWM of an existingwater of the United States is consistentwith the final rule published in theNovember 13, 1986, Federal Registerand applies to ditches constructed inwaters or that connect waters. Nothingin the NWP notice was intended tochange the November 13, 1986, FederalRegister notice which states thatdrainage ditches constructed entirely inupland areas generally are notconsidered to be waters of the UnitedStates.

Drainage ditches constructed inuplands that connect two waters of theUnited States may be considered watersof the United States if those ditches



constitute a surface water connectionbetween those two waters of the UnitedStates. As previously noted, drainageditches constructed entirely in uplandsgenerally are not considered to bewaters of the United States. Districtengineers will use the criteria at 33 CFR328.3(e) to determine the presence andextent of an OHWM that may havedeveloped in a drainage ditch.

One commenter stated that the July21, 1999, Federal Register noticeincorrectly asserts jurisdiction overfarmed wetlands by considering them tobe waters of the United States and theCorps does not have authority to requirepermits for discharges into these areas.Another commenter said that the Corpsdoes not have the authority to regulateactivities in isolated wetlands. Twocommenters indicated that the Corpscontradicts its regulations concerningthe construction and maintenance ofstormwater management facilities.These commenters assert that the Corpsregulations published in the November13, 1986, Federal Register state thatdetention and first flush basins aregenerally not considered waters of theUnited States. One commenterrequested clear definitions of the terms‘‘waters of the United States,’’‘‘navigable waters,’’ and ‘‘navigablewaters of the United States.’’

Farmed wetlands as defined under theFood Security Act are waters of theUnited States provided they meet thecriteria at 33 CFR 328.3. In addition,those criteria further provide that priorconverted croplands are not waters ofthe United States. Isolated wetlands arewaters of the United States, providedthey meet the criteria at 33 CFR 328.3.(Within the Fourth Circuit, isolatedwaters must be shown to have an actualconnection to interstate or foreigncommerce.) Stormwater managementfacilities constructed in waters of theUnited States may, under certaincircumstances, be considered waters ofthe United States. The Corps has thediscretion to determine on a case-by-case basis whether or not a particularwaterbody is a water of the UnitedStates (see 51 FR 41217). The term‘‘waters of the United States’’ is definedat 33 CFR 328.3 and refers to the CorpsSection 404 jurisdiction. The term‘‘navigable waters’’ as used in Section404 of the Clean Water Act has the samemeaning as ‘‘waters of the UnitedStates.’’ The term ‘‘navigable waters ofthe United States’’ is defined at 33 CFRpart 329 and refers to the Corps Section10 jurisdiction. None of thesedefinitions were changed by theproposed NWPs or these final NWPs.

Procedural Comments

Many commenters stated that theCorps was required to hold publichearings on the draft NWPs proposed inthe July 21, 1999, Federal Registernotice. Some of these commenters saidthat the draft NWPs, especially the threeproposed new NWP general conditions,represent a substantial change from theproposed NWPs published in the July 1,1998, Federal Register notice and thatthese changes warrant an additionalpublic hearing. Numerous commentersstated that the 75-day comment periodwas inadequate to thoroughly reviewand comment on the July 21, 1999,Federal Register notice. Some of thesecommenters said that the commentperiod should be extended becausemany districts did not post their draftregional conditions on their Internethome pages quickly enough.

We believe that we have fullycomplied with the public hearingrequirements of the Clean Water Act.After the publication of the July 1, 1998,Federal Register notice, public hearingson the proposed new and modifiedNWPs were held across the country,including a public hearing inWashington, DC on August 19, 1998.The proposal published in the July 21,1999, Federal Register was amodification of the original July 1, 1998,proposal to replace NWP 26 withactivity-specific NWPs.

The 75-day comment period for theJuly 21, 1999, Federal Register noticeprovided adequate time for the public toreview and comment on the draft NWPs.Within one week of the publication ofthe July 21, 1999, Federal Registernotice, 31 out of 38 districts had postedtheir draft regional conditions on theirInternet home pages, which allowed thepublic sufficient time to consider howthe regional conditioning processaffected the proposed new and modifiedNWPs. All Corps districts had postedtheir draft regional conditions on theirInternet home pages by September 3,1999.

A large number of commenters saidthat the Corps has completely ignoredthe economic and workloadimplications of the new and modifiedNWPs and general conditions proposedin the July 21, 1999, Federal Registernotice. These commenters indicated thatthe economic impacts of this proposalwould be substantial. Many commentersstated that the new and modified NWPsshould not be issued or implementeduntil an economic and workloadanalysis study is completed.

As required by the Energy and WaterDevelopment Appropriations Act, 2000,we have prepared, through the Institute

for Water Resources (IWR), a study ofthe workload and compliance costs thatwould be incurred by the July 21, 1999,proposal. The study report will beavailable on the Internet at the Corpsheadquarters regulatory home page.This study demonstrated that theproposal published in the July 21, 1999,Federal Register would result insubstantial increases in workload andcosts to the Corps and the regulatedpublic. The proposed new and modifiedNWPs, including the three proposedgeneral conditions, would result in a50% increase in the number of standardpermit applications received by theCorps each year. The proposed new andmodified NWP package would increasethe Corps costs for processing permitapplications at the current levels ofservice by $11.5 million annually,nearly a 15% increase over FY 1998program funding. In addition, the July21, 1999, proposal would also increasethe direct compliance costs incurred bythe regulated public by $46 millionannually. In contrast, the modificationsto the new and modified NWPs issuedtoday (i.e., the 1⁄2 acre limit and therevised floodplain condition) wouldresult in impacts very similar to the IWRestimate for a 1⁄2 acre approach to theNWPs. That IWR estimate was 40%fewer standard permit applications thanthe July 21, 1999, proposal and 30% lessin direct compliance costs. It is alsoimportant to note that the modifiedNWPs being issued today will protectthe aquatic environment substantiallybetter than the July 21, 1999, proposalwould. These final NWPs are also lesscomplex than the proposed NWPs,which will assist the regulated public.

Many commenters stated that theproposed new and modified NWPs,including the proposed generalconditions, violate the AdministrativeProcedures Act (APA). Thesecommenters said that the Corps hasfailed to provide an adequateadministrative record and failed todemonstrate that the proposed acreagelimits and other restrictions arenecessary to provide protection for theaquatic environment. Some of thesecommenters stated that the Corps mustprovide an environmental basis for theacreage limits of the new and modifiedNWPs. Several commenters said that theproposal to issue new and modifiedNWPs to replace NWP 26 falls under thejurisdiction of the APA, because theseNWPs are an agency statement ofgeneral applicability to implement,interpret, or prescribe a law or policy.A number of commenters stated that theproposed NWPs violate the APAbecause the schedule published in the



July 21, 1999, Federal Register noticeimplies that the decision to issue theseNWPs and new general conditions waspredetermined and the schedule did notinclude adequate time for the Corps tocarefully consider comments received inresponse to that notice.

The new and modified NWPs issuedtoday comply with Section 404(e),which requires notice and opportunityfor public hearing. The Corps notice andcomment process is virtually the sameas the APA process. We have preparedan adequate administrative record tojustify the issuance of these NWPs. Inaddition, we have fully considered allcomments received in response to theJuly 21, 1999, Federal Register notice todetermine the terms and conditions forthe new and modified NWPs. Thisincluded three extensions of the finalNWP issuance in order to fully andfairly consider all comments.

The acreage limit for an NWP isestablished so that the NWP authorizesmost activities that result in minimaladverse effects on the aquaticenvironment, individually orcumulatively. However, since NWPs areissued for national applicability, theterms and conditions of NWPs,including the acreage limits, must berestrictive enough to ensure that theNWPs authorize only those activitieswith minimal adverse effects on theaquatic environment, individually andcumulatively, across the country. TheNWPs also contain notificationrequirements that provide districtengineers with the opportunity toreview certain activities to determine ifthose activities will result in minimaladverse effects on the aquaticenvironment. Aquatic resourcefunctions and values vary considerablyacross the country. Therefore, theminimal adverse effects determinationby Corps districts is based site-specificor regional criteria.

The acreage limits of the new andmodified NWPs do not preclude anyproposed activity from qualifying for aDA permit. If a proposed activity doesnot meet the terms and conditions of anNWP, then that activity could beauthorized by other forms of DApermits. Regional general permits maybe available to authorize certainactivities that have minimal adverseeffects on the aquatic environmentbased on local environmentalconditions. The proposed work mayalso be authorized by individualpermits, including letters of permission,if the activity involves more thanminimal adverse effects on the aquaticenvironment.

We recognize that there are specificactivities or classes of activities in areas

of the country that will result inminimal adverse effects on the aquaticenvironment, but exceed the acreagelimits of the new and modified NWPs.Corps districts can develop regionalgeneral permits in the future toauthorize these activities.

Several commenters stated that theCorps is obligated to minimizeregulatory burdens on small businesses,as required by Small BusinessRegulatory Enforcement Fairness Act of1996. Two commenters said that theCorps is not in compliance with theRegulatory Flexibility Act because an‘‘initial regulatory flexibility analysis’’was not provided in the FederalRegister notice. One commenterindicated that the Corps must complywith the Congressional Review Act.Another commenter said that the July21, 1999, proposal to issue new andmodified NWPs does not comply withExecutive Order 12630, ‘‘GovernmentalActions and Interference withConstitutionally Protected PropertyRights,’’ because the Corps has notidentified the takings implications ofthe proposed NWPs.

The new and modified NWPs complywith the Small Business RegulatoryEnforcement Fairness Act of 1996because they provide an expeditedauthorization for activities in waters ofthe United States that have minimaladverse effects on the aquaticenvironment. We are not required toprovide an initial regulatory flexibilityanalysis because we proposed to issuenew and modified NWPs, not changeour regulations. The Corps believes it isnot required to submit the final new andmodified NWPs to Congress pursuant tothe Congressional Review Act, but as amatter of comity, we will submit thefinal NWPs to Congress. The new andmodified NWPs will not result in thetaking of private property because theNWPs provide an expeditedauthorization process for certainactivities in waters of the United Statesthat have minimal individual andcumulative adverse effects on theaquatic environment but require a Corpspermit. If a proposed activity does notcomply with the terms and conditionsof an NWP, then the project proponentcan request another form of DA permit,including regional general permits,letters of permission, or individualpermits. Therefore, there are no takingsimplications for these NWPs.

General Terms and Limits of NWPsOne commenter stated that the

acreage limits for the new and modifiedNWPs are too high. One commenter saidthat the NWPs should not have anacreage limit greater than 1 acre. Other

commenters recommended maximumacreage limits of 1⁄3 acre and 1⁄4 acre.Several commenters suggested higheracreage limits for NWP activities inephemeral streams located in thewestern United States. Two commenterssaid that the NWPs should have loweracreage limits for activities in certaintypes of wetlands, such as forestedwetlands, playas, prairie potholes,vernal pools, kettles, pocosins, andbogs. Two commenters opposed the useof indexed acreage limits.

We have fully considered commentsconcerning acreage limits for the newand modified NWPs. To simplify thenew and modified NWPs and ensurethat these NWPs still authorize onlyactivities with minimal individual andcumulative adverse effects on theaquatic environment, all of the newNWPs, except for NWP 41, will have a1⁄2 acre limit. We have not imposed a 1⁄2acre limit on NWP 41 because it onlyauthorizes activities that benefit theaquatic environment. The acreage limitsfor specific NWPs are discussed indetail in the preamble discussions foreach NWP. Division engineers canregionally condition these NWPs tolower acreage limits if there are specificconcerns for the aquatic environment ina particular part of the country. We donot agree that there should be higheracreage limits on the NWPs fordischarges of dredged or fill materialinto ephemeral streams in the westernstates, due to the national scope of theNWPs. However, Corps districts mayissue RGPs with larger acreagethresholds in any local situations wherethey determine that the activity wouldresult in no more than minimal adverseeffects, individually or cumulatively.Division engineers can also regionallycondition these NWPs to restrict orprohibit their use in certain types ofhigh value waters of the United States.We have eliminated the indexed acreagelimits from NWPs 39 and 40 because thesimple 1⁄2 acre limit is a more effectiveway to ensure that these NWPsauthorize only activities with minimaladverse effects and the vast majority ofactivities authorized by NWP 26 arebelow or slightly above 1⁄2 acre.

Many commenters indicated that thePCN thresholds for the new andmodified NWPs should be 1⁄3 acre,instead of 1⁄4 acre. These commentersbelieve the difference between these twonotification thresholds is too small toprovide any value and that the lowerPCN threshold will increase the Corpsworkload without providing anybenefits. One commenter recommendedproviding more consistency in PCNthresholds for the NWPs. Severalcommenters stated that PCNs should be



required for all activities authorized byNWPs and one commenter remarkedthat PCNs should be required for alldischarges into special aquatic sites.One commenter said that lower acreagelimits for the NWPs should result infewer PCN requirements, not a loweringof PCN thresholds.

To further ensure that the new NWPsauthorize only activities with minimaladverse effects on the aquaticenvironment, we have established a 1⁄10

acre PCN threshold for the new NWPs(except for NWP 41) and retained theoriginal PCN thresholds for impacts toopen waters, including streams. Thenotification threshold for NWP 14 hasalso been lowered to 1⁄10 acre. The 1⁄10

acre PCN threshold will result in aworkload increase for Corps districts,but we believe that this increase will beminor, since many permittees requestwritten verification of NWPauthorizations, even when notificationis not required. We believe that the PCNthresholds in the new and modifiedNWPs are consistent. There arecircumstances, such as NWP 39activities that impact open waters,where we believe it is necessary toreview all proposed activities. However,we do not agree that is necessary torequire notification for all NWPactivities because most minor activitiesauthorized by NWPs result in minimaladverse effects. Division engineers canimpose regional conditions on NWPs tolower PCN thresholds in thosegeographic areas where there is thepotential for more than minimal adverseeffects on the aquatic environment. Wedo not agree that lower acreage limitsshould result in fewer PCNrequirements because the notificationprocess is necessary to address activitiesthat might result in more than minimaladverse effects.

Several commenters suggested addingPCN requirements for discharges intoephemeral streams, not just perennialand intermittent streams, becauseephemeral streams are important in aridregions. One commenter recommendedreducing the 500 linear foot PCNthreshold for perennial and intermittentstream impacts to 200 linear feet. Onecommenter said that PCNs should berequired for all discharges into openwaters to allow district engineers todetermine appropriate vegetated bufferrequirements.

Except for those NWPs that requirenotification for all activities or alldischarges of dredged or fill materialinto open waters, we believe thatnotification requirements for streamimpacts should be limited to perennialand intermittent streams, sincedischarges of dredged or fill material

into ephemeral streams are likely toresult in minimal adverse effects. Ingeographic areas where discharges ofdredged or fill material into ephemeralstream beds may result in more thanminimal adverse effects on the aquaticenvironment, division engineers canregionally condition these NWPs torequire notification for these activities.For some of the new NWPs, we havereplaced the 500 linear foot PCNthreshold for stream bed impacts with a300 linear foot limit. Division engineerscan impose regional conditions torequire a PCN threshold to addressactivities that may result in more thanminimal adverse effects. With theexception of NWP 39, we do not agreethat it is necessary to requirenotification for all discharges of dredgedor fill material into open waters todetermine vegetated bufferrequirements. Vegetated buffers are notrequired for all activities authorized bythe NWPs. District engineers willdetermine on a case-by-case basis whenit is appropriate to require vegetatedbuffers next to open waters.

Cumulative Impact Assessment andData Collection

Many commenters objected to theCorps position stated in the July 21,1999, Federal Register notice that theCorps can monitor only thosecumulative adverse effects on theaquatic environment that result fromactivities permitted by the Corpsregulatory program. Some of thesecommenters said that this position iscontrary to the Clean Water Act andrecommended that the Corps utilize thedefinition of cumulative impacts foundin the regulations for the NationalEnvironment Policy Act (NEPA).Numerous commenters asserted thatcumulative impact analysis shouldinclude both regulated and unregulatedlosses of aquatic habitat within ageographic area. One commenter saidthat cumulative impact analysis shouldinclude all activities that affect waterquality. Two commenters objected tothe Corps statement in the July 21, 1999,Federal Register notice that districtengineers must have clear, extensive,and unequivocal evidence that activitiesregulated pursuant to section 404 of theClean Water Act or section 10 of theRivers and Harbors Act are causingmore than minimal cumulative adverseeffects on the aquatic environment, notunregulated activities, before revokingor suspending the use of NWPs. Onecommenter stated that cumulativeimpact assessment should considertemporary and permanent losses ofwaters of the United States in a differentmanner. This commenter also remarked

that the cumulative impact assessmentmust also consider both losses of watersof the United States and compensatorymitigation to determine the netcumulative adverse effects on theaquatic environment.

The Corps position in the July 21,1999, Federal Register noticeconcerning cumulative impactassessment is based on the statutoryrequirements of Section 404(e) of theClean Water Act. There are no otherreferences to cumulative adverse effectsin Section 404 of the Clean Water Act.The requirement for authorizedactivities to cause no more thanminimal adverse effects on the aquaticenvironment applies only to generalpermits (including NWPs), not theentire Corps regulatory program. Thisposition is also supported by theregulations for implementing theSection 404(b)(1) guidelines at 40 CFR230.7. These regulations state thatactivities authorized by general permitscan result only in minimal adverseeffects on water quality and the aquaticenvironment (see 40 CFR 230.7(a)(3)).

The Corps scope of analysis for thepurposes of NEPA is discussed in 33CFR part 325, appendix B. The Corpscan only address the impacts of thespecific activity that requires aDepartment of the Army permit andthose portions of the activity over whichthe district engineer has sufficientcontrol and responsibility to warrantFederal review.

The Corps does provide differentconsideration to temporary andpermanent losses of waters of theUnited States when assessing theadverse effects of regulated activities onthe aquatic environment. As discussedin the NWP definition of ‘‘loss of watersof the United States,’’ waters of theUnited States that are temporarily filled,flooded, excavated, or drained, butrestored after construction, are notincluded in the measurement of loss ofwaters of the United States. Therefore,temporary losses would not be includedin the Corps cumulative impactassessment since the affected areaswould be restored as waters of theUnited States. When assessingcumulative adverse effects on theaquatic environment, the Corps alsoconsiders compensatory mitigation forlosses authorized by NWPs, becausecompensatory mitigation is oftenrequired to offset losses of waters of theUnited States and ensure that theactivities authorized by NWPs haveminimal adverse effects. Corps districtsassess cumulative impacts on awatershed basis. Attempting to assesscumulative impacts across the nation isnot possible, or appropriate.



Two commenters supported the Corpsassertion that cumulative impacts mustbe assessed on a watershed basis. Oneof these commenters said thatwatersheds should be defined by the 8-digit watershed cataloging unitsdesignated by the U.S. GeologicalSurvey (USGS). Two commentersrequested that the Corps develop amethod to quantify potential cumulativeand indirect impacts that will resultfrom activities authorized by NWPs in awatershed. Two commenters said thatdistrict engineers must demonstrate thatthe use of NWPs in a watershed orgeographic area will not result in morethan minimal adverse effects on theaquatic environment.

As discussed in the July 1, 1998,Federal Register notice, the Corpsutilizes the 8-digit hydrological unitcodes developed by USGS to identifywatersheds for its data collectionprocess. However, district engineers canutilize subwatersheds within thesehydrological units when conductingcumulative impact assessments. TheCorps does not have the resources todevelop a method to quantify potentialcumulative and indirect impacts thatmay result from activities authorized byNWPs. If the division or districtengineer determines that the use ofNWPs to authorize activities within aparticular watershed or geographic areawill result in more than minimalindividual or cumulative effects on theaquatic environment, then he or she canmodify, suspend, or revoke those NWPsin that area (see 33 CFR 330.4). This isa determination that must be made bydistricts as they administer the Corpsregulatory program in specificgeographic areas.

Two commenters said that the Corpsshould analyze the cumulative impactsof the current NWPs and any NWPs thatwill be proposed in the future beforeissuing the new and modified NWPs.These commenters recommended thatthis analysis consider the efficiency ofcompensatory mitigation. Twocommenters objected to the Corpsassertion that it cannot make theindividual and cumulative adverseeffects determination nationally.

When the Corps issues or modifies anNWP, an environmental assessment, afinding of no significant impact(FONSI), and if necessary, an evaluationof compliance with the Section404(b)(1) guidelines is prepared for eachNWP. These items are contained in onedocument. This document includes ananalysis of the cumulative impacts thatare expected to occur during the timethe NWP is in effect. This analysis alsoincludes estimates of the amount ofcompensatory mitigation that will be

required to offset losses of waters of theUnited States authorized by the NWP.We maintain our position that anassessment of cumulative adverseeffects that result from the use of theNWPs cannot be made at the nationallevel, and that the only technicallysound method to conduct thisassessment is on a watershed basis,through the district offices. Concurrentwith the issuance of the new andmodified NWPs and the final decisiondocuments for each of the new andmodified NWPs, division engineers willissue supplementary decisiondocuments that address the impacts ofthe NWPs in Corps districts.

Several commenters said that Corpsrecord-keeping methods are inadequateand that the Corps should issuequarterly public reports on wetlandlosses and the status of compensatorymitigation. A number of commentersrecommended that the Corps establish adata collection system that tracksvarious types of compensatorymitigation (i.e., creation, restoration,enhancement, preservation) andmonitors compliance with the goal of nonet loss. Numerous commentersindicated that the Corps needs tocommit to stronger monitoring andenforcement efforts.

We do not have the resources topublish quarterly reports on impacts towaters of the United States andcompensatory mitigation at this time.The data collection systems for mostCorps districts do not currentlydifferentiate between the amounts ofcompensatory mitigation providedthrough restoration, enhancement,creation, or preservation. Instead, mostdistricts track the total amount ofcompensatory mitigation required forCorps permits. The effectiveness ofcompensatory mitigation efforts ismonitored by district engineers on acase-by-case basis to the extent allowedby workload and personnel resources.Therefore, we cannot collect this type ofinformation for all activities. We arecommitted to strong enforcement andmonitoring efforts, but enforcement andcompliance efforts are limited toavailable district resources. The Corpspermit evaluation workload must takeprecedence over enforcement andmonitoring.

Compliance with the NationalEnvironmental Policy Act

Several commenters stated that theproposed NWPs require anEnvironmental Impact Statement (EIS).Two commenters objected to the Corpsstatement in the July 21, 1999, FederalRegister notice that the NWP programdoes not require an EIS because the

NWPs can only authorize activities withminimal individual and cumulativeadverse effects on the aquaticenvironment.

We maintain our position that theNWPs do not require an EIS, but we arein the process of preparing aProgrammatic Environmental ImpactStatement (PEIS) for the NWP program.

A number of commenters indicatedthat the Corps needs to reevaluate theFinding of No Significant Impact(FONSI) issued on June 23, 1998, sincethe draft NWPs are substantiallydifferent from the NWPs proposed inthe July 1, 1998, Federal Registernotice. These commenters said that thethree proposed new general conditionswarrant reevaluation of the FONSI.

We do not agree that the FONSIissued on June 23, 1998, requiresrevision. The FONSI issued on June 23,1998, was a general statement offindings for the NWP program. ThatFONSI did not address a specific set ofNWPs. The three proposed new generalconditions are intended to provideadditional protection to the aquaticenvironment and their implementationwould not substantially change thescope of the FONSI issued on June 23,1998, or its findings.

Two commenters said that the Corpsshould release or issue theEnvironmental Assessments (EAs) forthe new and modified NWPs beforethose permits are issued so that thepublic can comment on those EAs.These commenters stated that the EAsshould also include regional analyses inaddition to the national analyses. One ofthese commenters indicated that theEAs should contain analyses ofpotential impacts on recreation, wildlifehabitat, endangered species, culturalresources, land use, and habitatdegradation, as well as addresscumulative impacts that occur when anNWP is used with other NWPs. Anothercommenter requested that the EAsassess the expansion of geographicscope of the new NWPs, the amount ofcumulative and individual impacts thatmay be authorized by these NWPs, thetypes of waters that may be adverselyaffected by the new and modifiedNWPs, and the functions of thosewaters. Other commenters objected tothe preliminary EAs, stating that thoseEAs did not include an ecologicalrationale for the proposed acreagelimits.

We do not agree that it was necessaryto issue new preliminary EAs for thedraft NWPs proposed in the July 21,1999, Federal Register notice. Wereceived few comments in response tothe preliminary EAs that were issuedwith the July 1, 1998, Federal Register



notice. Those individuals thatcommented on the preliminary EAsrequested that the Corps include analternatives analysis in each EA. Wehave included an alternatives analysisin each EA for the new and modifiedNWPs. The EAs for the new andmodified NWPs issued today discuss, ingeneral terms, the acreage limits forthese NWPs, the types of waters subjectto the new and modified NWPs, and thefunctions of those waters. The EAs alsoinclude projected impacts to waters ofthe United States that will occurthrough the use of these NWPs. Sinceaquatic resource functions and valuesvary considerably across the country,we cannot include detailed ecologicalanalyses to support the acreage limitsfor these NWPs. However, divisionengineers will be issuing supplementalEAs that will address issues at thedistrict level.

The final EAs for the new andmodified NWPs have been substantiallymodified from the preliminary EAsissued in conjunction with the July 1,1998, Federal Register notice. The finalEAs contain general discussions ofpotential individual and cumulativeimpacts to the 20 public interest reviewfactors at 33 CFR 320.4 and the factorsin Subparts C through F of the Section404(b)(1) guidelines (40 CFR Part 230).

In response to the July 21, 1999,Federal Register notice, somecommenters addressed theProgrammatic Environmental ImpactStatement (PEIS) of the NWP programthat the Corps is preparing. Onecommenter supported the PEIS, butasserted that an EIS is required. Anothercommenter stated that the PEIS isunwarranted and unnecessary. Manycommenters said that the Corps cannotfinalize the NWPs before the PEIS iscompleted.

These issues concerning the PEISwere addressed in the July 21, 1999,Federal Register notice (see 64 FR39265) and we have not changed ourposition.

Compliance with the EndangeredSpecies Act

Two commenters stated that theproposed NWPs require EndangeredSpecies Act (ESA) Section 7consultation. Three commentersasserted that the proposed new andmodified NWPs do not comply withESA. One of these commenters said thatthe Corps does not adequately addressthe direct, secondary, and cumulativeimpacts on endangered and threatenedspecies that will result from activitiesauthorized by the NWPs. Thiscommenter also stated that the Corpscannot rely on prospective permittees to

conduct adequate investigations todetermine whether endangered orthreatened species or designated criticalhabitat occur on the project site. Threecommenters indicated that compliancewith ESA cannot be ensured foractivities that do not require notificationto the district engineer.

We have requested programmatic ESAconsultation for the NWP program. Wecontend that the new and modifiedNWPs, through the requirements ofGeneral Condition 11, comply withESA. We use the ESA interagencyconsultation regulations at 50 CFR Part402 when determining compliance withESA. Scope of analysis issues for ESAwill be resolved through consultationwith the U.S. Fish and Wildlife Service(FWS) and the National MarineFisheries Service (NMFS). GeneralCondition 11 requires non-Federalpermittees to notify the district engineerif any listed species or designatedcritical habitat might be affected or is inthe vicinity of the project. The permitteeshall not begin work on the activityuntil notified by the District Engineerthat the requirements of the EndangeredSpecies Act have been satisfied and thatthe activity is authorized.

Three commenters asserted that theCorps cannot issue the new andmodified NWPs prior to completingprogrammatic ESA consultation. Onecommenter stated that programmaticESA consultation does not obviate theneed for regional and site-specificconsultation. One commenter said thatsince Standard Local OperatingProcedures for Endangered Species(SLOPES) have not yet been completed,the Corps cannot rely on SLOPES toensure compliance with ESA. Onecommenter suggested that SLOPESshould be developed for all issuedNWPs.

We can issue the NWPs prior to thecompletion of the NWP programmaticESA consultation, because issuance ofthe NWPs has not foreclosedopportunities to address endangeredspecies and the NWPs already containsafeguards to ensure compliance withESA. The programmatic consultationwill provide additional assurance thatthe existing NWPs, as well as the newand modified NWPs issued today, havea formal process to develop anynecessary additional procedures at thedistrict level. The programmaticconsultation will provide furtherassurance that the NWP program doesnot jeopardize the existence of anyFederally-listed threatened orendangered species, or destroy oradversely modify the critical habitat ofsuch species. Both the programmaticESA consultation and the PEIS will

address potential cumulative effects onendangered and threatened species andtheir designated critical habitatregarding the NWP program. Wemaintain that the SLOPES help ensurecompliance with the ESA at the districtlevel. Districts can meet with localoffices of the FWS and NMFS at anytime to modify or improve theirSLOPES. Districts will enter case-specific consultation in any case wherethe district determines the proposedproject may affect a threatened orendangered species.

In addition to NWP General Condition11, division and district engineers haveimposed and can impose additionalregional conditions on the NWPs andcase-specific special conditions toaddress endangered or threatenedspecies or their critical habitat. Forexample, Corps regional conditions canprohibit the use of NWPs in designatedcritical habitat for endangered orthreatened species or requirenotification for activities in areas knownto be inhabited by threatened orendangered species. Some Corpsdistricts have conducted programmaticconsultation for specific geographicareas. Also, Corps districts have andwill conduct case-specific Section 7consultation for endangered species.These efforts usually consider the NWPprogram in that particular area. Insummary, General Condition 11, Corpsregional conditions, case-specificspecial conditions, and SLOPES willensure that the NWP program complieswith ESA.

Stream ImpactsMany commenters objected to the

proposed NWPs, stating that thousandsof feet of stream bed could bechannelized or filled under these NWPs.These commenters said that linear footlimits for stream bed impacts should beimposed on the NWPs instead of acreagelimits. A large number of commentersrecommended adding a 250 linear footlimit for stream bed impacts to the newand modified NWPs. Other commenterssuggested linear stream bed impactlimits of 200, 100, and 50 linear feet. Afew commenters said that the NWPsshould not authorize any streamimpacts. Another commenter requestedclarification regarding the PCNthresholds for linear feet of stream bedimpacts, asking if the flooded area isincluded with the filled area.

After consideration of thesecomments, we have decided to imposeon NWPs 39, 40, 42, and 43, a 300 linearfoot limit for filling or excavationactivities in stream beds. This 300 linearfoot limit applies only to stream bedsthat normally have flowing water.



Division engineers can regionallycondition the NWPs to lower the 300linear foot limit for stream bed impacts,impose linear foot limits for stream bedimpacts on other NWPs, or establishlower PCN thresholds for filling orexcavating stream beds.

Several commenters stated that allCorps districts must use the samemethod to determine where the averageannual flow of a stream is 1 cfs. One ofthese commenters recommended usingdrainage area as a substitute. Anothercommenter suggested that the guidancein the preamble to the final rule for theNWP regulations (33 CFR part 330)published in the November 22, 1991,Federal Register (56 FR 59112) shouldbe used to establish where the 1 cfspoint of a stream is located. Thatguidance described how to determinethe geographic location of the limit ofheadwaters for perennial, intermittent,and ephemeral streams.

District engineers will utilize the bestmethods available to identify where theaverage annual flow of a stream is 1 cfs.Although the guidance published in theNovember 22, 1991, Federal Registerwas intended to assist district engineersand the regulated public in identifyingthe geographic location of headwaters(i.e., where the average annual flow isless than 5 cfs), this guidance can alsobe used to locate the 1 cfs point on astream. District engineers can utilize themedian flow, rather than the averageflow, to establish where the 1 cfs pointon a stream is located. This approachrecognizes that streams with highlyirregular flows, such as those occurringin the western portion of the UnitedStates, could be dry at the 1 cfs pointfor most of the year and still average, onan annual basis, a flow of 1 cfs becauseof high volume, flash flood type flowswhich greatly distort the average.Furthermore, we recognize that usingthe median flow for an entire year instreams that have no stream flow forover half the year but with flows greaterthan 1 cfs for several months would alsodistort the average. It should also benoted that precision is not required inestablishing the 1 cfs point. Thedefinition allows the district engineer touse approximate means to compute it.The drainage area that will contributean average annual flow of 1 cfs can beestimated by approximating theproportion of average annualprecipitation that is expected to find itsway into the stream. Knowing theamount of area that will produce thisflow in a particular region, the 1 cfspoint can be approximated fromdrainage area maps. For example, inmost areas of the eastern United States(i.e., east of the Mississippi River), one

square mile of drainage area produces 1cfs of stream flow annually.

Applicable Waters for the New andModified Nationwide Permits

A number of commenters objected tothe increased scope of waters in whichthe proposed NWPs published in theJuly 21, 1999, Federal Register could beused. One commenter stated that theNWPs should be used only inheadwaters and isolated waters. Twocommenters supported the use of thenew and modified NWPs in non-tidalwaters. Three commenters objected toprohibiting the use of the new andmodified NWPs in tidal waters and non-tidal wetlands adjacent to tidal waters.One commenter stated that the Corpshas not provided justification forexcluding the new and modified NWPsfrom non-tidal wetlands that areadjacent to tidal waters andrecommended that the Corps utilize theterm ‘‘contiguous’’ instead of‘‘adjacent.’’

We contend that limiting the newNWPs to non-tidal waters, except fornon-tidal wetlands adjacent to tidalwaters, provides adequate protection ofthe aquatic environment and helpsensure that these NWPs authorize onlyactivities with minimal adverse effects.Regional conditioning of the new andmodified NWPs by division engineerswill provide additional protection byrestricting or prohibiting the use of thenew and modified NWPs in high valuewaters. General Condition 25 will alsoprotect high value waters. GeneralCondition 26 does not allow permanent,above-grade fills in the 100-yearfloodplain downstream of theheadwaters.

We do not agree that the new andmodified NWPs should be used in tidalwaters or non-tidal wetlands adjacent totidal waters. We have identified tidalwaters as high value waters on anational basis. Non-tidal wetlandsadjacent to tidal waters contribute to theecological integrity of tidal waters andshould not be subject to the new andmodified NWPs. District engineers candevelop regional general permits fordischarges into non-tidal watersadjacent to tidal waters, if such regionalgeneral permits are needed for activitiesthat result in minimal adverse effects onthe aquatic environment, individuallyor cumulatively.

One commenter requested that theCorps define the term ‘‘adjacent’’ for thepurposes of the new and modifiedNWPs. One commenter stated that thedefinition of the term ‘‘adjacent’’ at 33CFR 328.3(c) is confusing for use in theNWP program and that the Corps needsto provide a definition that is easily

understandable by the regulated public.This commenter also said that the NWPsshould be limited to only those non-tidal wetlands that are both adjacent toand inundated by spring tides; wetlandslandward of the mean high tide linewould be considered as non-tidalwetlands adjacent to tidal waters andwetlands landward of the spring hightide line would not be consideredadjacent to tidal waters. Twocommenters asked the Corps to providea clear explanation of the upstream limitof non-tidal wetlands adjacent to tidalwaters and whether non-tidal wetlandsmiles upstream of tidal waters would beconsidered adjacent to those tidalwaters.

For the new and modified NWPs, thedefinition of the term ‘‘adjacent’’ at 33CFR 328.3(c) will be used. Since aquaticsystems vary considerably across thecountry, we cannot establish morespecific criteria at a national level tofurther define adjacency. Districtengineers will make appropriatedeterminations of adjacency, based onregional hydrologic conditions.

Wetlands located between mean highwater and the spring high tide line aretidal wetlands because they areinundated by tidal waters (see 33 CFR328.4(b)(1)). Non-tidal wetlands that arebordering, contiguous, or neighboring totidal waters are considered adjacent tothose tidal waters. The upstream limit ofnon-tidal wetlands adjacent to tidalwaters is determined by the degree ofinfluence of the tidal waterbody on non-tidal wetlands. Those non-tidalwetlands that exert direct hydrologicinfluence on tidal waters are consideredadjacent to those tidal waters. For thepurposes of the NWPs, non-tidalstreams located upstream of the head oftide are not considered adjacent to tidalwaters, although those streamseventually flow into tidal waters and arepart of the surface tributary system.Wetlands adjacent to non-tidal streamsare within the scope of waters for thenew and modified NWPs.

One commenter stated that the newand modified NWPs should notauthorize discharges into prairiepotholes, playa lakes, or vernal pools.Another commenter said that the NWPsshould not be used in rare andirreplaceable wetlands.

We do not agree that the new andmodified NWPs should be subject to anational prohibition against dischargesof dredged or fill material into prairiepotholes, playa lakes, or vernal pools.Rare and irreplaceable wetlands havenot been formally defined. GeneralCondition 25 restricts activities indesignated critical resource waters.Further, division engineers can



regionally condition these NWPs torestrict or prohibit discharges into highvalue waters. For those activities thatrequire notification, district engineerscan exercise discretionary authority ifthe proposed work will result in morethan minimal adverse effects on theaquatic environment.

MitigationA large number of commenters

specifically addressed the compensatorymitigation requirements of the proposednew and modified NWPs. Onecommenter said that the goal ofcompensatory mitigation is not clearlydefined in the proposed NWPs. Severalcommenters requested that the Corpsclarify when compensatory mitigation isrequired for activities authorized byNWP. These commenters said that thereare some inconsistencies concerningcompensatory mitigation requirementsin the July 21, 1999, Federal Registernotice. Two of these commentersreferred to Corps statements in the July21, 1999, Federal Register notice that:(1) Compensatory mitigation willnormally be required for activities thatrequire notification and, (2) in somecircumstances, compensatory mitigationmay be unnecessary because the adverseeffects on the aquatic environment areminimal without mitigation.

For the NWP program, including thenew and modified NWPs, the purpose ofcompensatory mitigation is to ensurethat the authorized work results inminimal adverse effects on the aquaticenvironment. For those activities thatrequire notification to the districtengineer, compensatory mitigation maybe necessary to ensure that theauthorized work results in minimaladverse effects on the aquaticenvironment. District engineers willdetermine, on a case-by-case basis,when compensatory mitigation is notpracticable. Our use of the word‘‘normally’’ when referring tocompensatory mitigation for NWPactivities allows district engineersflexibility in determining whencompensatory mitigation will berequired and lets the regulated publicknow that compensatory mitigation islikely to be required for impacts thatexceed PCN thresholds, except undercircumstances where the adverse effectsare minimal without compensatorymitigation. Activities that do not requirenotification are presumed to result inminimal adverse effects and do notrequire compensatory mitigation toensure minimal adverse effects. Divisionengineers can regionally condition anNWP to lower the notification thresholdto allow district engineers to determine,on case-by-case basis, if compensatory

mitigation is necessary to ensure thatthe authorized work results in minimaladverse effects on the aquaticenvironment.

Many commenters opposed the use ofcompensatory mitigation to ensure thatactivities authorized by NWPs result inminimal adverse effects on the aquaticenvironment. Several commenterssupported the use of compensatorymitigation to ensure that authorizedactivities result in minimal adverseeffects. One of these commenters saidthat compensatory mitigation shouldnot be required simply to meet a ‘‘no netloss’’ of wetland acreage goal. Onecommenter indicated that compensatorymitigation should not be required foractivities authorized by NWP becauseNWPs can only authorize activities withminimal adverse effects.

Compensatory mitigation is oftennecessary to offset losses of waters ofthe United States and ensure that theauthorized activity results in minimaladverse effects on the aquaticenvironment. The NWP regulations at33 CFR 330.1(e)(3) allow permittees toprovide compensatory mitigation toreduce the adverse effects of theproposed work to the minimal level. Inthe July 21, 1999, Federal Registernotice, we stated that for the purposesof the NWP program, compensatorymitigation is required to ensure that theauthorized activities result in minimaladverse effects on the aquaticenvironment, individually orcumulatively, not to achieve ‘‘no netloss’’ of wetland acreage. NWPcompensatory mitigation requirementsare not driven by the ‘‘no net loss’’ goal,but will help support that goal. Adistrict engineer can determine, for anactivity that requires notification, thatcompensatory mitigation is notpracticable.

Two commenters said thatcompensatory mitigation should berequired only for impacts to waters ofthe United States. Another commenterstated that the Corps is proposing torequire mitigation for activities notsubject to its regulatory authority, suchas flooding, excavation, and drainageactivities. One commenter indicatedthat the July 21, 1999, Federal Registernotice requires compensatory mitigationfor non-wetland impacts. Onecommenter remarked that compensatorymitigation for wetland or stream lossesshould be subject to a public noticeprocess because mitigation is being usedto avoid significant impacts.

Compensatory mitigation may berequired by district engineers to offsetlosses of waters of the United States toensure that the authorized work resultsin minimal adverse effects on the

aquatic environment. Although districtengineers may require out-of-kindcompensatory mitigation, such as therestoration of upland riparian zones, tocompensate for losses of the functionsand values of waters of the UnitedStates, compensatory mitigation isrequired only to offset losses of watersof the United States. District engineerscan require compensatory mitigation forlosses of aquatic resource functions andvalues caused by flooding, excavation,and drainage caused by activities thatare associated with activities that areregulated by the Corps (i.e., dischargesof dredged or fill material). However, ifthe activity does not involve work innavigable waters of the United States ora discharge of dredged or fill materialinto waters of the United States,compensatory mitigation cannot berequired because no Corps permit isnecessary to conduct the activity. We donot agree that a public notice process isrequired for compensatory mitigationprojects.

Several commenters stated that themitigation requirements discussed inthe July 21, 1999, Federal Registernotice do not adequately protectwetlands. Numerous commenters saidthat the NWPs should be conditioned torequire a full alternatives analysis.Many commenters requested that theCorps condition all NWPs to requireproject proponents to avoid impacts tothe maximum extent practicable andimplement compensatory mitigationthat fully replaces all losses of wetlandacreage and functions. One commenterobjected to including minimization as aform of mitigation. Two commentersasserted that the NWPs should besubject to the mitigation requirements ofthe 1990 mitigation Memorandum ofAgreement (MOA), includingsequencing requirements.

The mitigation requirements of thenew and modified NWPs adequatelyprotect wetlands. General Condition 19requires permittees to avoid andminimize discharges into waters of theUnited States on-site to the maximumextent practicable. General Condition 19also states that district engineers canrequire compensatory mitigation toensure that the authorized work resultsin minimal adverse effects on theaquatic environment. The use ofminimization as mitigation is wellestablished in Federal regulations (seethe Council on Environmental Quality’sregulations at 40 CFR 1508.20). Theavoidance provisions of the 1990mitigation MOA apply only to standardindividual permits, not activitiesauthorized by NWPs.

One commenter stated that some ofthe new NWPs (e.g., NWPs 39 and 43)



require compensatory mitigationwithout requiring submission of anotification to the district engineer. Thiscommenter said that compensatorymitigation should not be required unlessthe district engineer reviews the PCNand determines that compensatorymitigation is necessary to offsetauthorized losses of waters of theUnited States. One commenter objectedto requiring compensatory mitigation foractivities that require notification, butanother commenter supported thisrequirement. Two commenters objectedto allowing district engineers to makethe final determination whethercompensatory mitigation is required.

Compensatory mitigation is notrequired for NWP activities that do notrequire notification to the districtengineer. Division engineers canregionally condition NWPs to lowerPCN thresholds or require notificationfor all activities, if such PCN thresholdsare necessary to allow district engineersto require compensatory mitigation toensure that adverse effects to the aquaticenvironment are minimal. We believethat it is appropriate for districtengineers to make the final decisionswhether compensatory mitigation isnecessary to ensure that activitiesauthorized by NWPs result in minimaladverse effects.

A large number of commentersrecommended that the Corps requireacre-for-acre wetland restoration ascompensatory mitigation for allactivities resulting in the loss of greaterthan 1⁄4 acre of wetlands. Othercommenters suggested 1⁄2, 1⁄3, and 1 acrethresholds for requiring compensatorymitigation. Many commenters said thata minimum 1:1 mitigation ratio shouldbe required for all losses of waters of theUnited States authorized by NWPs.Other commenters recommended highermitigation ratios. One commenter saidthat the Corps should providecompensatory mitigation guidelines thataddresses site selection and design,options for compensatory mitigation,and a description of success criteria andmonitoring requirements.

While final specific compensatorymitigation requirements, such asreplacement ratios, are determined bydistrict engineers on a case-by-casebasis, we agree that there should be aminimum requirement of an acre-for-acre (1:1) wetland replacement ascompensatory mitigation for allactivities requiring notification. TheCorps can require compensatorymitigation in excess of a 1:1 ratio ofimpact acreage to compensatorymitigation acreage to adequately replaceaquatic resource functions and valuesthat are lost as a result of activities

authorized by NWPs. The Corps canalso accept out-of-kind compensatorymitigation, if it is best for the aquaticenvironment. Existing policy andguidance for compensatory mitigationprovides a preference for on-site and in-kind replacement of the functions andvalues of the impacted aquatic resource.If on-site compensatory mitigation is notpracticable, off-site compensatorymitigation should be undertaken in thesame geographic area if practicable, (i.e.,in close proximity and, to the extentpossible, the same watershed) orenvironmentally preferable. The Corpscan also accept out-of-kindcompensatory mitigation, if it is best forthe aquatic environment.

Many commenters stated that theCorps should require in-kind, on-sitereplacement of wetlands. Severalcommenters supported the utilization ofoff-site, out-of-kind compensatorymitigation for losses of waters of theUnited States authorized by NWPs.These commenters also supported theCorps position that the appropriatecompensatory mitigation required foractivities authorized by NWPs should bebased on what is best for the aquaticenvironment. One commenter remarkedthat the selected mitigation methodshould best replace site-specificfunctions and values of the impactedaquatic habitat. One commentersupported the use of out-of-kindcompensatory mitigation, such as theestablishment and maintenance ofvegetated buffers next to streams, andstream restoration, and the preservationof wetland/upland complexes.

When reviewing compensatorymitigation proposals, district engineerswill consider what is best for the aquaticenvironment, including requirementsfor vegetated buffers next to perennialand intermittent streams and other openwaters. Wetland restoration,enhancement, creation, and, only inexceptional circumstances, preservationare not the only methods of providingcompensatory mitigation for activitiesauthorized by NWPs. Stream restorationand enhancement, including therestoration or preservation of riparianzones, can also provide compensatorymitigation for losses resulting fromactivities authorized by NWPs. Theestablishment and maintenance ofvegetated buffers next to streams andother open waters as compensatorymitigation for losses of waters of theUnited States authorized by NWPs arediscussed in the next section of thisnotice.

Many commenters opposed the Corpspreference for the use of mitigationbanks and in lieu fee programs toprovide compensatory mitigation for

losses of waters of the United Statesauthorized by NWPs. A number of othercommenters supported the Corpspreference for consolidatedcompensatory mitigation methods. Onecommenter indicated that the preferencefor consolidated compensatorymitigation methods should not belimited to mitigation banks. Onecommenter expressed some support forusing mitigation banks and otherconsolidated mitigation methods asalternatives for on-site compensatorymitigation because of the uncertainty forsuccess in some individualcompensatory mitigation projects. Thiscommenter also recommendeddeveloping guidance for in lieu feeprograms and other consolidatedmitigation methods before allowingwidespread use of these methods.Another commenter recommended thatthe text of the NWPs and the preambleto the notice announcing the issuance ofthe NWPs refer to the Federal guidancefor compensatory mitigation, especiallyfor the use of mitigation banks and inlieu fee programs. Two commentersindicated that in lieu fee programsshould not be considered ascompensatory mitigation until guidancehas been developed for these programs.One commenter objected to the use of inlieu fee programs to providecompensatory mitigation because thecommenter asserts that these programsare not subject to agency and publicreview and do not ensure compliancewith the goal of no net loss.

Consolidated compensatorymitigation methods, includingmitigation banks, are often an efficientmeans of compensating for losses ofwaters of the United States, particularlyfor multiple small activities. Werecognize that consolidatedcompensatory mitigation methods areoften more practicable and successfulbecause of the planning andimplementation efforts typicallyexpended on these activities by theirproponents. Individual efforts to create,restore, or enhance wetlands to replacesmall wetland losses may beunsuccessful because of poor planningand/or construction. Furthermore,consolidated mitigation efforts are oftenbetter monitored and maintained andoften result in the establishment oflarger contiguous wetland areas thatbenefit the overall local aquaticenvironment and many of the speciesthat utilize larger aquatic habitats.

One commenter stated that wheremitigation banks and in lieu feeprograms are in the same watershed,preference should be given to using themitigation bank since mitigation bankssubject to more stringent requirements



and more likely to be successful. Twocommenters said that mitigation banksshould be located in the same watershedas the site of the NWP activity. Onecommenter said that in lieu feeprograms should not be used ascompensatory mitigation for activitiesthat result in the loss of greater than 1⁄10

acre of waters of the United States.Where practicable, mitigation banks

and other consolidated mitigationmethods should be located in the samewatershed as the site of the activityauthorized by NWP. District engineershave the authority to approve ordisapprove the use of specific mitigationapproaches as compensatory mitigationfor losses of waters of the United Statesauthorized by NWPs. Permittees shouldhave the flexibility to utilizecompensatory mitigation methods thatare within their means to accomplishand meet the requirements to offsetunavoidable losses of waters of theUnited States. To the extent practicable,permittees should consider use ofapproved mitigation banks and otherforms of consolidated compensatorymitigation. We do not agree that thereshould be an acreage limit that wouldpreclude the use of any particular typeof mitigation to provide compensatorymitigation for losses of waters of theUnited States authorized by NWPs.

Several commenters stated that thepreservation of high value wetlandsshould be encouraged as a form ofcompensatory mitigation. A number ofcommenters objected to the use ofpreservation as compensatorymitigation, unless one-to-onereplacement of aquatic habitats has beenachieved. One commenter objected tothe use of enhancement unless one-to-one replacement of wetlands has beenaccomplished.

We concur that the preservation ofhigh value wetlands is one appropriatemethod of compensatory mitigation forlosses of waters of the United States, butonly in exceptional circumstances.Preservation of aquatic habitats shouldbe done in conjunction with aquatichabitat restoration, creation, orenhancement to offset losses of watersof the United States. The amount ofpreservation or enhancement that willbe accepted as compensatory mitigationfor impacts authorized by NWPs will bedetermined by district engineers on acase-by-case basis.

To further clarify the issue ofmitigation, we have removed some ofthe mitigation information from GeneralCondition 13 and consolidated themitigation requirements for the NWPs inGeneral Condition 19.

Vegetated Buffers

In the July 21, 1999, Federal Registernotice, we proposed to require theestablishment and maintenance ofvegetated buffers adjacent to waters ofthe United States as an alternative formof compensatory mitigation to ensurethat activities authorized by NWPsresult in minimal adverse effects on theaquatic environment. The vegetatedbuffer requirement was in the draftNWP 39 and the proposed modificationsto General Conditions 13 and 19.

As a result of our review of thecomments received in response to theJuly 21, 1999, Federal Register notice,we have made several changes to thevegetated buffer requirements for theNWPs. For example, vegetated buffersare required only if there are perennialor intermittent streams or other openwaters on the project site. Vegetatedbuffers will be established andmaintained on the uplands or wetlandsnext to the open waters. For thepurposes of the NWPs, vegetated buffersare not required next to ephemeralstreams or wetlands. The use ofvegetated buffers as mitigation for NWPactivities is discussed in GeneralCondition 19. The changes to thevegetated buffer requirements arediscussed in more detail below.

Many commenters supported thevegetated buffer requirements for thenew and modified NWPs. A number ofcommenters stated that vegetatedbuffers should not be a condition of anNWP authorization. These commenterssaid that vegetated buffers should beconsidered only when a landownervoluntarily agrees to establish andmaintain vegetated buffers adjacent towaters of the United States as analternative form of compensatorymitigation. Several commenters contendthat compensatory mitigation sitesshould be protected by vegetatedbuffers. Another commenter stated thatthe use of upland buffers should beconsistent with current Federalguidance, particularly the ‘‘FederalGuidance for the Establishment, Useand Operation of Mitigation Banks’’ (60FR 58605). A commenter stated that thevegetated buffer requirement should notapply to all activities that require aCorps permit, such as piers.

Vegetated buffers will be requiredonly when there are open waters, suchas perennial or intermittent streams, onthe project site, and the NWP activityinvolves discharges of dredged or fillmaterial into waters of the UnitedStates. However, a required vegetatedbuffer could be established off-site forimpacts on the project site. Projectproponents will not be required to

establish and maintain vegetated buffersnext to ephemeral streams. Vegetatedbuffers are not normally required foractivities that require only Section 10permits, but district engineers canrequire vegetated buffers ascompensatory mitigation for activitiesauthorized by Section 10 permits, ifsuch compensatory mitigation isappropriate. District engineers willdetermine, on a case-by-case basis,whether or not vegetated buffers arerequired. Vegetated buffers are requiredonly when it is practicable for thepermittee to establish these areas andthe vegetated buffer will be self-maintaining, other than restrictions oncutting or removal of the buffer. If thepermittee does not own the land next tothe open waters, then vegetated buffersare not required unless the permitteecan reasonably obtain the appropriateconservation easements for thosebuffers.

Compensatory mitigation sites can beprotected by vegetated buffers, but wedo not agree that this should be arequirement of the NWP program.However, providing a buffer to therestored waters of the United States ina mitigation bank is precisely why agood mitigation bank will have a matrixof waters and uplands for maximumecological functions and values. The‘‘Federal Guidance for theEstablishment, Use and Operation ofMitigation Banks’’ does not contain anyuseful guidance concerning theestablishment and maintenance ofvegetated buffers next to open waters.During the revision of the vegetatedbuffer requirements for the NWPs, weconsidered the riparian forest bufferConservation Practice Standard (Code391A) issued by NRCS in July 1997. Wealso considered the information in thedocument entitled ‘‘Riparian ForestBuffers: Function and Design forProtection and Enhancement of WaterResources’’ published by the ForestService.

A large number of commentersopposed the vegetated bufferrequirement. Those in opposition to thisrequirement were divided into twogroups. One group objected to vegetatedbuffers as compensatory mitigation fordischarges of dredged or fill materialinto wetlands because they believe thatwetland losses should be compensatedonly through wetland restoration,creation, or enhancement. The othergroup of commenters stated that theCorps does not have the regulatory orstatutory authority to require vegetatedbuffers adjacent to waters of the UnitedStates.

Those commenters that oppose theuse of vegetated buffers as



compensatory mitigation for losses ofwetlands indicated that vegetatedbuffers adjacent to waters of the UnitedStates do not replace the lost functionsthat would be provided by wetlandrestoration or creation. Many of thesecommenters said that vegetated buffersnext to open waters and streams do notprovide flood storage capacity, wildlifehabitat, water quality, or groundwaterrecharge functions. Numerouscommenters stated that using vegetatedbuffers as compensatory mitigation willnot help the Administration achieve itsgoal of a net gain of 100,000 acres ofwetlands per year. Other commentersindicated that vegetated buffers ascompensatory mitigation is contrary tothe ‘‘no net loss’’ goal. One commentersaid that the use of vegetated buffers iscontrary to the 1990 mitigation MOA.

Vegetated buffers next to streams andother open waters on the project site arean important type of compensatorymitigation that provides substantialaquatic habitat, water quality, and floodstorage benefits. The establishment andmaintenance of vegetated buffers may bea preferable form of compensatorymitigation because it may be infeasibleto create or restore wetlands on theproject site after the activity is built.Vegetated buffers, even if they areestablished on uplands next to streamsand other open waters, would provideon-site aquatic habitat, water quality,and flood storage functions.

Vegetated buffers next to streams andother open waters provide many of thesame functions that wetlands provide.In fact, many vegetated buffers will bewetlands. Due to their proximity toopen waters, vegetated buffers are moreeffective at protecting open waters thanwetlands distant from those openwaters. We have refined the followinglist of the functions of vegetated buffersfrom the list of functions published inthe July 21, 1999, Federal Registernotice. In general, vegetated buffers nextto streams and open waters provide thefollowing functions: (1) Reduce adverseeffects to water quality by removingnutrients and pollutants from surfacerunoff; (2) reduce concentrations ofnutrients and pollutants in subsurfacewater that flows into streams and otheropen waters; (3) moderate storm flowsto streams, which reduces downstreamflooding and degradation of aquatichabitat; (4) stabilize soil (through plantroots), which reduces erosion in thevicinity of the open waterbody; (5)provide shade to the waterbody, whichmoderates water temperature changesand provides a more stable aquatichabitat for fish and other aquaticorganisms; (6) provide detritus, which isa food source for many aquatic

organisms; (7) provide large woodydebris from riparian zones, whichfurnishes cover and habitat for aquaticorganisms and may cause the formationof pools in the stream channel; (8)provide habitat to a wide variety ofaquatic and terrestrial species; (9) trapsediments, thereby reducingdegradation of the substrate thatprovides habitat for fish and otheraquatic organisms (e.g., some fishspecies depend upon gravel stream bedsfor spawning habitats); and (10) providecorridors for movement and dispersal ofmany species of wildlife. In addition,vegetated buffers next to streamsprovide flood storage capacity andgroundwater recharge functions.

Although we are requiring theestablishment and maintenance ofvegetated buffers in uplands next toopen waters as compensatory mitigationfor certain activities, we expect tocontinue our documented programmaticno net loss of wetlands approach to theregulatory program. For most activitiesauthorized by NWPs, vegetated bufferswill only be a portion of the requiredcompensatory mitigation. Moreover,where the project involves fillingwetlands, vegetated buffers will only berequired after a 1:1 ratio based onacreage of wetland mitigation has beenrequired. Only 1⁄3 of the additionalmitigation required for the project maybe non-wetland vegetated buffers. Thevegetated buffer requirement for theNWPs is not contrary to the 1990mitigation MOA, because vegetatedbuffers next to open waters help achievethe goals of the Clean Water Act. It isalso important to note that the 1990mitigation MOA applies only toactivities subject to the standard permitprocess.

One commenter requestedclarification as to where vegetatedbuffers must be located. A fewcommenters disagree with the Corpsposition that vegetated buffers adjacentto waters of the United States providebenefits for the aquatic environment.One commenter requested that theCorps explain why vegetated buffers arenecessary and specify the goals that willbe accomplished by vegetated buffers.This commenter said that the goals ofvegetated buffers will affect widthrequirements. This commenter alsobelieves that not all areas adjacent toopen waters provide significant benefitsto water quality and that all vegetatedbuffers do not perform all 10 functionslisted on page 39274 of the July 21,1999, Federal Register notice, becausethe functions of vegetation buffers aredependent on the vegetation presentand site and soil characteristics.

For the purposes of the NWPs,vegetated buffers are to be establishedand maintained on uplands or wetlandsnext to perennial and intermittentstreams and other open waters. Thefunctions and values of vegetatedbuffers next to open waters, especiallyforested riparian zones next to streams,are well documented in the scientificliterature. The main goal of thevegetated buffer requirement is torestore, enhance, and protect openwaters. In general, properly designedand implemented vegetated buffers,especially those inhabited by trees, willperform the functions listed above.Since we are not requiring vegetatedbuffers next to ephemeral streams, mostvegetated buffers should have adequateamounts of water to naturally establishand support trees in the riparian zone.Vegetated buffers will normally be 25 to50 feet wide on both sides of streams,but the district engineer can requirewider vegetated buffers to addressdocumented water quality concerns. A25 to 50 foot wide vegetated buffer nextto a stream provides important aquatichabitat functions and values, as well assubstantial water quality benefits.

Many commenters believe that thevegetated buffer requirements for thenew and modified NWPs exceed theCorps regulatory authority. Severalcommenters consider the vegetatedbuffer requirement as an attempt toexpand the scope of the Corpsjurisdiction to uplands. Numerouscommenters indicated that the Corps isrequiring vegetated buffers even if thework does not involve discharges ofdredged or fill material into waters ofthe United States. Many commenterssaid that any vegetated bufferrequirements should be imposed by thestates, who have authority underSection 401 of the Clean Water Act toaddress water quality issues. Severalcommenters said that vegetated bufferscould also be imposed by states throughthe requirements of the NationalPollutant Discharge Elimination Systemprogram.

The Corps has the statutory authorityto require vegetated buffers next tostreams and other open waters becausethe goal of the Clean Water Act is torestore and maintain the chemical,physical and biological integrity ofNation’s waters. This goal is stated inSection 101 of the Clean Water Act andis applicable to all sections of the CleanWater Act, including section 404.Vegetated buffers next to streams andother open waters help maintain thechemical, physical, and biologicalintegrity of these waters. Theestablishment and maintenance ofvegetated buffers next to streams is the



restoration of riparian zones. Dischargesof dredged or fill material into waters ofthe United States, which the Corpsregulates under section 404 of the CleanWater Act, result in the loss of aquaticresource functions and values. Theestablishment and maintenance ofvegetated buffers next to streams andother open waters offsets losses ofaquatic resource functions and valuesand reduces degradation of theseaquatic resources.

The vegetated buffer requirement isnot an attempt to expand the Corpsregulatory jurisdiction. We are notasserting jurisdiction over uplands nextto streams and other open waters. Wecannot require compensatory mitigationfor upland impacts, but we can require,as compensatory mitigation, uplandvegetated buffers that restore or protectaquatic habitat and water quality. Theestablishment or maintenance of avegetated buffer next to waters of theUnited States can be an important partof the compensatory mitigation requiredfor a Corps permit. The establishmentand maintenance of vegetated buffersnext to open waters can be consideredas compensatory mitigation that offsetslosses of waters of the United States andensures that the adverse effects of theauthorized work on the aquaticenvironment are minimal. Vegetatedbuffers are not normally required foractivities that do not involve dischargesof dredged or fill material into waters ofthe United States. For example,vegetated buffers are not required forstructures in navigable waters of theUnited States, unless the districtengineer determines that suchcompensatory mitigation is necessary tooffset impacts to those waters.

Vegetated buffers next to streams andother open waters do more than protectwater quality. Eight of the 10 functionslisted in the July 21, 1999, FederalRegister notice relate to aquatic habitat.Only two functions listed in that noticeexclusively addressed water qualityfunctions. Likewise, most of thefunctions of vegetated buffers listed inthis Federal Register notice are aquatichabitat functions. Commenters objectingto the vegetated buffer requirementfocused only on the water qualityfunctions of vegetated buffers, andignored the aquatic habitat functions.

A number of commenters stated thatthe vegetated buffer requirementduplicates, and may conflict with, localland use planning. Two commenterssaid that the vegetated bufferrequirement is contrary to 33 CFR320.4(j)(2), which states that the primaryresponsibility for zoning lies with state,local and Tribal governments. Manycommenters believe that the vegetated

buffer requirement constitutes a takingof private property. Two commenterssaid that the vegetated bufferrequirement has the potential to resultin a taking of private property becausethe Corps has failed to demonstrate thecausal link between the vegetated bufferrequirement and specific water qualityconcerns caused by discharges ofdredged or fill material into waters ofthe United States authorized by theNWPs. These commenters assert that theCorps must allow alternative methods toaddress water quality concerns.

The vegetated buffer requirement doesnot duplicate or conflict with local landuse planning. Although some state andlocal governments have vegetated bufferrequirements, there are many regionsthat do not have such requirements. Thedistrict engineer will consider state andlocal vegetated buffer requirementswhen determining the vegetated bufferrequirements for NWP activities. If thestate or local vegetated bufferrequirements are adequate, then thedistrict engineer can defer to thoserequirements. The vegetated bufferrequirement is not contrary to 33 CFR320.4(j)(2) because it does not overridestate or local zoning decisions. If it isimpractical for the permittee to establishand maintain vegetated buffers next toopen waters on the project site, thenvegetated buffers are not required. If theproject proponent does not want toestablish and maintain vegetated buffersand the district engineer determines thatsuch buffers are necessary to ensure theproposed work results in minimaladverse effects on the aquaticenvironment, then the projectproponent can request an individualpermit or other form of DA permit.

The vegetated buffer requirement doesnot constitute a taking of privateproperty because it is compensatorymitigation to offset losses of aquaticresource functions and values. If theproject proponent does not want toestablish and maintain vegetated buffersnext to open waters on the project site,then he or she can request another formof DA permit to authorize the activity.The removal of nutrients, sediments,and pollutants from surface and shallowsubsurface waters by vegetated buffersnext to open waters is well documentedin the scientific literature. Theestablishment and maintenance ofvegetated buffers is a type of out-of-kindcompensatory mitigation to offsetauthorized losses of wetlands and otherwaters of the United States, which alsoremove these chemical compounds fromwaters. The vegetated bufferrequirement is no different thanrequiring the alteration of uplands tocreate wetlands as compensatory

mitigation for losses of wetlands. In fact,the establishment and maintenance ofvegetated buffers next to streams andother open waters is likely to be moresuccessful and less costly thanattempting to create wetlands by gradingand altering uplands. When reviewingcompensatory mitigation proposals,district engineers can consideralternative forms of compensatorymitigation to address water qualityconcerns, if vegetated buffers are notpractical for the project site.

Several commenters opposed thevegetated buffer requirement, statingthat it substantially reduces the amountof developable area on a parcel of land.Two commenters said that the vegetatedbuffer requirement will be difficult toimplement for those projects that havealready received subdivision approval.These commenters also assert that thisrequirement will increase the cost ofhousing. Several commenters said thatthe establishment and maintenance ofvegetated buffers is practical only inlarge, open spaces. One commenterstated that the vegetated bufferrequirement will increase sprawldevelopment because it requiresbuildings to be constructed farther apartfrom each other.

Although the vegetated bufferrequirement may reduce the amount ofdevelopable land on a particular parcel,we do not agree that such a reductionwill be substantial. In most situations,vegetated buffers will be located in 100-year floodplains, in which there areoften state or local building restrictions.If it is impractical for the projectproponent to establish and maintainvegetated buffers on the propertybecause of prior subdivision approval,then the district engineer can determinethat vegetated buffers are not required.We do not agree that the vegetatedbuffer requirement will increase the costof housing more than any other type ofcompensatory mitigation requirement,such as the creation of wetlands. Inmost circumstances, establishing andmaintaining vegetated buffers will beless costly than grading land to createwetlands. The vegetated bufferrequirement will not encourage sprawldevelopment.

One commenter believes that theCorps needs to provide a cost-benefitanalysis for the vegetated bufferrequirement. This commenter alsostated that this requirement requires anenvironmental impact statementbecause it is a major Federal action.

The vegetated buffer requirement doesnot need a cost-benefit analysis or anenvironmental impact statement.

In the July 21, 1999, Federal Registernotice, we stated that vegetated buffers



will normally be 50 to 125 feet wide, butprovided district engineers with theflexibility to impose narrower or widervegetated buffers. Many commentersstated that the widths of vegetatedbuffers required for NWP activitiesshould be based on the width necessaryto ensure that the adverse effects to theaquatic environment are minimal. Thesecommenters said that permit conditions,including mitigation requirements, mustbe directly related to impacts of theproposed work and appropriate to scopeand degree of those impacts. One ofthese commenters cited 33 CFR 325.4(a).Another commenter cited 33 CFR320.4(r) and remarked that the Corpshas not demonstrated that vegetatedbuffers provide compensatorymitigation for identifiable losses ofresources. Numerous commenters saidthat the requirement for 50 to 125 footwide vegetated buffers would, in somecases, result in compensatory mitigationrequirements that would exceed theimpacts of the activity. Twocommenters disapprove of the vegetatedbuffer requirement, stating that it is nottailored to the effects of the authorizedactivity and could result in largevegetated buffers for projects that resultin small losses of waters of the UnitedStates. Several commenters said thatvegetated buffer requirements forparticular projects must be inproportion of the impacts of theauthorized work.

After considering these comments, wehave reduced the recommended widthof vegetated buffers to 25 to 50 feet wideon both sides of the stream or 25 to 50feet from the OHWM or bank of theopen waterbody. District engineers canrequire wider vegetated buffers if thereare documented water quality concerns.The width of the vegetated buffer ismeasured in a direction perpendicularto the OHWM or bank of the openwaterbody. The 25 to 50 foot widevegetated buffer will provide aquatichabitat functions and values, as well aswater quality benefits. Whendetermining the appropriate width ofvegetated buffers, district engineers willconsider the degree of the adverseeffects on the aquatic environmentcaused by the authorized work andrequire compensatory mitigation to theextent necessary to ensure that theadverse effects are minimal. Therequired compensatory mitigation,including vegetated buffers, will be inproportion, from an aquatic functionand value perspective, to the authorizedimpacts to waters of the United States.If the authorized work results inminimal adverse effects on the aquaticenvironment without compensatory

mitigation, then vegetated buffers arenot required.

Two commenters said that the Corpsshould not specify a minimum width forvegetated buffers. One of thesecommenters contends that the benefitsof vegetated buffers is likely to bedifferent for dissimilar types ofwetlands and waterbodies. Onecommenter requested clarificationconcerning the criteria that will be usedto determine the width of vegetatedbuffers for specific project sites andwhich plant species should be used toestablish the vegetated buffer. Onecommenter asked if a 50 to 125 footwide vegetated buffer will be requiredin all cases. Two commentersrecommended a minimum vegetatedbuffer width of 100 feet.

One commenter stated that manyfactors are cited in the current literaturefor determining the appropriate width ofvegetated buffers. This commenter saidthat the Corps needs a standard methodthat district engineers can use todetermine appropriate, site-specificvegetated buffer widths. Thiscommenter also indicated that the widthof the vegetated buffer should be basedon the value of the aquatic resource tobe protected and adjacent land uses. Inaddition, the method should identifysituations where vegetated buffers areinappropriate or impractical. Severalcommenters said that the Corps shoulduse a more flexible approach forvegetated buffer requirements, includingthe consideration of other methods thatprovide the same benefits, whileutilizing less land. One commentersuggested methods to provide flexibilityfor vegetated buffer requirements,including buffer averaging to allowcertain buffer areas to be narrower aslong as the average width meetsminimum requirements, conservationeasements that can be donated toresponsible charitable trusts and ownertax benefits, and density trading whichallows developers density credits tooffset loss of useable land to buffers.

We believe that recommending a 25 to50 foot wide vegetated buffer andallowing district engineers theflexibility to determine appropriatevegetated buffer widths on a case-by-case basis is appropriate. A 25 to 50 footwide vegetated buffer next to openwaters will protect or restore aquatichabitat functions and values andprovide water quality benefits. Districtengineers can require wider vegetatedbuffers if there are documented waterquality concerns that can be addressedby a wider vegetated buffer. The districtengineer will determine the appropriatewidth of the vegetated buffer on a case-by-case basis, based on the degree of

impacts and the quality of waters.District engineers will also assess, on acase-by-case basis, whether or notvegetated buffers are impractical orinappropriate. District engineers canalso consider the use of buffer widthaveraging. Density trading is moreappropriately addressed by localplanning and zoning agencies.

One commenter suggested usingvegetated buffer width guidelinespublished by NRCS, which are based onsoil type, slope, and topography. Twocommenters stated that appropriatevegetated buffer widths should bedetermined by district engineers afterconsultation with Federal and stateresource agencies. Two commentersrequested that the Corps provideguidance for determining the length ofthe vegetated buffer along the openwaterbody (i.e., how far upstream anddownstream the vegetated buffer shouldextend).

We do not agree that it is necessary,for the purposes of the NWPs, to utilizecomplex vegetated buffer widthguidelines based on soil types, slopes,and topography. Vegetated buffers 25 to50 feet wide provide substantial aquatichabitat functions and water qualitybenefits. District engineers can requirewider vegetated buffers to addressdocumented water quality concerns ornarrower vegetated buffers where it isnot practicable to require 25 foot widebuffers. District engineers cancoordinate with Federal and stateresource agencies to determine theappropriate vegetated buffer width for aparticular project, but we do not believethat this is necessary in all cases. Thelength of the vegetated buffer shouldextend along the open waterbody to theextent the district engineer determinesnecessary to offset authorized impacts.

Several commenters indicated that theguidance in the July 21, 1999, FederalRegister notice concerning the width ofvegetated buffers contradictory. Forinstance, General Condition 9 states thatvegetated buffers must be established tothe maximum extent practicable butthere is a statement on page 39339 thatsays that the vegetated buffer should beas wide as possible. In addition, on page39274 there is a statement that thewidth of the vegetated buffer mustbalance the benefits to environmentwith the uses of property resulting fromauthorized work. These commentersbelieve that the width of the vegetatedbuffer should be based on the benefitsof the buffer and the adverse effects ofthe regulated activity (i.e., the dischargeof dredged or fill material into waters ofthe United States), not all uses of theproject.



We do not agree that the discussion ofvegetated buffer requirements in theJuly 21, 1999, Federal Register noticecontains contradictions. Theappropriate width of a vegetated bufferis dependent on what is practicable forthe prospective permittee and theamount of vegetated buffer that isnecessary to ensure that the activityresults in minimal adverse effects to theaquatic environment.

Several commenters said thatvegetated buffers should not be requiredin all cases, particularly in thosesituations where the adverse effects onthe aquatic environment are minimal.One commenter asked if vegetatedbuffers are required for activities that donot require notification to the districtengineer. Another commenter asked ifvegetated buffers are required even ifthe proposed work does not result inany impacts to streams, open waters, orwetlands on the project site. Onecommenter stated that vegetated buffersshould be required only if there areperennial or intermittent streams on thesite. Two commenters asserted thatvegetated buffers should not be requirednext to ephemeral streams. Onecommenter stated that flexibility fordistrict engineers to determine vegetatedbuffer widths reduces predictability forthe regulated public when planningdevelopments. Two commentersrecommended that joint Federal agencyguidance be developed for vegetatedbuffer requirements.

Vegetated buffers are not required ifthe proposed work results in minimaladverse effects on the aquaticenvironment without compensatorymitigation. Vegetated buffers are onlyrequired where the proposed projectrequires a Corps permit. The Corps isnot establishing any new authority toregulate riparian areas, where no Corpspermit is otherwise required. Vegetatedbuffers are not required for activitiesthat do not require notification, sincethese activities result in minimaladverse effects on the aquaticenvironment. Vegetated buffers arerequired if there are open waters on theproject site. We agree that vegetatedbuffers should not be required next toephemeral streams. We will considerthe development of joint guidance forvegetated buffer requirements.

Two commenters objected torequirements for conservationeasements or deed restrictions forvegetated buffers. Another commentersupported the requirement forconservation easements or deedrestrictions.

As with other forms of compensatorymitigation, conservation easements ordeed restrictions for vegetated buffers

are necessary to ensure that thecompensatory mitigation site ismaintained and protected from futurealteration.

Three commenters requestedclarification concerning how vegetatedbuffers are to be maintained and for howlong vegetated buffers must bemaintained. Two commenters statedthat the requirement to maintainvegetated buffers is too burdensome forpermittees because it implies that thepermittees would have to monitorvegetated buffers and replace anyvegetation that dies or is damagedduring a flood or other storm event. Onecommenter indicated that themaintenance of vegetated buffers isproblematic in arid regions becausewater would have to be provided to theplants to ensure their survival, whichwould be costly and contrary to waterconservation policies. Two commenterssuggested a limit of one year for themaintenance of vegetated buffers.

Permittees are not required toestablish and maintain vegetated buffersthat would require active management,such as irrigation. If the vegetated buffermust be planted, it must be self-sustaining, without the need formaintenance. Trees and shrubs damagedby storms and other events do not needto be replaced because the vegetationwill grow back at the buffer site.

Two commenters supported therequirement for native species invegetated buffers. Several commentersobjected to requiring native species invegetated buffers. One commenter saidthat this requirement is contrary tocurrent best management practicesbecause certain non-invasive, non-native plant species may be preferablein certain circumstances. Twocommenters stated that the requirementfor native species is unnecessarybecause there is no connection betweenwater quality and the planting of nativespecies or the removal of noxiousweeds. Two commenters indicated thatthe requirement for native trees andshrubs in vegetated buffers is too strictand permittees should be able to plantnative grasses and other herbaceousspecies instead of trees and shrubs. Onecommenter requested a list of‘‘acceptable’’ native plant species forvegetated buffers.

Permittees are encouraged to plantvegetated buffers with native species,but this is not an absolute requirement.Vegetated buffers should be plantedwith native species, but a well-established vegetated buffer thatcontains some non-native speciesshould not be removed and replaced.We recognize that there arecircumstances where non-native species

may be more appropriate. The plantingof native species is important for thehabitat functions of vegetated buffers.We encourage permittees to plantseedlings and saplings of trees in thevegetated buffer, but permittees canplant herbaceous vegetation in thevegetated buffer and allow naturalsuccession processes to allow a woodyplant community to develop at a latertime. We do not agree that it isnecessary to provide a list of‘‘acceptable’’ native species that shouldbe planted in vegetated buffers.

One commenter requestedclarification whether vegetated buffersmust be grassed or wooded. Anothercommenter objected to woodedvegetated buffers because they wouldimpede flood flows and increaseerosion. One commenter stated thatwooded vegetated buffers would cause aloss of hydraulic capacity of thechannel.

Vegetated buffers should have woodyvegetation because woody plants,especially trees, are importantcomponents of an effective vegetatedbuffer. Woody plants, especially trees,provide shade to the open waters, aswell as substantial amounts of detritusthat is an important component ofaquatic food webs. Woody vegetation inriparian zones often slows the velocityof floodwaters, which can provide waterquality benefits by allowing sediment todrop out of suspension and decrease thesediment load in the water column. Wedo not agree that vegetated buffersincrease erosion. The roots of woodyvegetation help stabilize the soil,thereby decreasing erosion. Althoughwoody vegetation, especially tree fallsthat create snags, may reduce thehydraulic capacity of a stream channel,it is important to consider the ecologicalfunctions and values of the stream, notjust the hydraulic capacity of the streamchannel and water conveyance. Withthe new and modified NWPs, we areplacing greater emphasis on protectingopen waters, especially streams.

One commenter supported the Corpsstatement in the July 21, 1999, FederalRegister notice that mowed lawns arenot considered vegetated buffers.Several commenters objected to thisstatement and believe that mowedlawns should be considered vegetatedbuffers.

We do not consider mowed lawnsnext to streams and other open watersas vegetated buffers because mowedlawns do not provide most of thefunctions and values that a vegetatedbuffer inhabited by trees or shrubswould provide. For example, mowedlawns cannot shade streams to moderatewater temperature changes or produce



woody debris that creates importantaquatic habitat. In many areas, mowedlawns are intensively managed throughthe application of fertilizers, herbicides,and pesticides. Intensively managedmowed lawns next to streams canexacerbate water quality problems thatvegetated buffers are intended toaddress. Since mowed lawns next tostreams and other open waters do notprovide the functions and values thatwooded vegetated buffers provide, itwould be inappropriate to considermowed lawns next to streams and otheropen waters as compensatory mitigationfor activities authorized by NWPs.

One commenter said that therequirement for vegetated buffers isinconsistent with the proposed NWPdefinitions. For example, the definitionfor the term ‘‘compensatory mitigation’’does not include vegetated buffers thatare established and maintained onuplands next to streams and other openwaters. This commenter also contendsthat vegetated buffers cannot beconsidered enhancement because theproposed NWP definition for this termis limited to activities in aquatichabitats that increase one or moreaquatic functions.

The establishment and maintenanceof vegetated buffers next to streams andother open waters as compensatorymitigation is not inconsistent with thedefinition of the term ‘‘compensatorymitigation’’ provided in the‘‘Definitions’’ section of the NWPs. Theplanting of trees and shrubs next to astream in a pasture enhances the qualityof the stream. Stream restorationactivities usually involve planting theupland or wetland riparian zone withtrees and shrubs. We have added adefinition of the term ‘‘vegetated buffer’’in the ‘‘Definitions’’ section of theNWPs.

One commenter requested that theCorps provide guidance concerning thespecific amount of vegetated buffer thatwill be required as compensatorymitigation to offset losses of waters ofthe United States. Two commentersstated that vegetated buffers should bean additional requirement after thepermittee has provided fullcompensation for wetland losses. Acommenter asked if vegetated buffersalone can be used to satisfycompensatory mitigation requirementsfor the NWPs. This commenter alsostated that, in many cases, vegetatedbuffers already exist on site and that thepreservation of these areas is stronglydiscouraged by Corps mitigation policybecause of the ‘‘no net loss’’ goal. Thiscommenter believes that the vegetatedbuffer requirement is contrary to Corpsmitigation policy.

We have modified General Condition19 to provide guidance regarding theproportion of compensatory mitigationthat should consist of vegetated buffers.If there are open waters on the projectsite and the district engineer requirescompensatory mitigation for wetlandimpacts to ensure that the net adverseeffects on the aquatic environment areminimal, any vegetated buffer willcomprise a portion or all of theremaining compensatory mitigationacreage after the permanently filledwetlands have been replaced at a one-to-one acreage basis. By using vegetatedbuffers as compensatory mitigation, thequality of open waters will be protectedor enhanced by maintaining thesevegetated areas if they already exist onthe site. If the vegetated buffer is notused as compensatory mitigation, thenthe permittee could cut down theexisting vegetation next to the openwaters (which often does not require aDA permit), which would adverselyaffect the quality of the open waters.Programmatically, the Corps willcontinue to support the ‘‘no net loss’’goal for wetlands, but the establishmentand maintenance of vegetated buffers forNWP activities will provide substantialbenefits for open waters, especiallystreams.

Many commenters stated that thevegetated buffer requirement isproblematic for companies and agenciesthat do not own the property where thevegetated buffer would be located on theproject site. For example, the authorityof flood control agencies is often limitedto the channel, not to the land adjacentto the channel. As another example,utility companies have limited easementrights in utility line rights-of-way andcannot impose deed restrictions orconservation easements in these areas.Numerous commenters said thatvegetated buffers should not be requiredwhere the project proponent does notown the land next to the open waters onthe project site. Several commentersstated that the costs for public agenciesto obtain rights-of-way to establish andmaintain vegetative buffers will beprohibitive or economically impractical.

District engineers will not normallyrequire vegetated buffers next to streamsand other open waters if the permitteedoes not own the land next to the openwaterbody. Such vegetated buffers willonly be required where the permitteehas or can reasonably obtain theappropriate conservation easements.Likewise, vegetated buffers are notrequired in utility line easements.However, if the utility company isbuilding a substation on its land andthere are open waters on the project site,the district engineer can require

vegetated buffers next to those openwaters as compensatory mitigation.

Two commenters said that vegetatedbuffers are impractical in urban areaswhere most of the surface runoff isdirected to storm drain pipes, notstreams. A commenter stated thatmaintaining vegetated buffers adjacentto facilities built by developers buthanded over to local governmentswould increase costs to those localgovernments. Another commenter saidthat the vegetated buffer requirementwill increase project and maintenancecosts for state Department ofTransportation projects. Twocommenters assert that the vegetatedbuffer requirement will makemaintenance of authorized facilitiesdifficult or prohibitive. One commenterrequested clarification whether avegetated buffer disturbed during amaintenance activity will requireadditional mitigation or whether theproject proponent would be requiredonly to replace the disturbed vegetation.

If it is impractical to establish andmaintain vegetated buffers next tostreams in urban areas because of thelimited amount of available land, thenvegetated buffers are not required. Inthese circumstances, off-sitecompensatory mitigation may bepreferable, including off-site vegetatedbuffers. If vegetated buffers next to openwaters would make the maintenance offacilities in waters of the United Statestoo costly, then other forms ofcompensatory mitigation should beconsidered. We do not agree that thevegetated buffer requirement wouldincrease costs for transportationprojects, because these activities usuallyrequire compensatory mitigation. If it isnecessary to disturb the vegetated bufferduring maintenance activities, theproject proponent is only required toallow the vegetation to grow back.Additional compensatory mitigationwill not be required for the disturbanceof a vegetated buffer if it is allowed togrow back.

Several commenters said thatvegetated buffers should not be requiredfor activities authorized by NWPs 3 or12. One commenter indicated thatvegetated buffers should not be requiredfor linear transportation crossings thatare constructed perpendicular to thestream. Another commenter said thatvegetated buffers should not be requiredfor flood control maintenance activities.

District engineers can requirevegetated buffers for activities thatinvolve discharges of dredged or fillmaterial into waters of the United Statesif there are open waters on the projectsite. Activities authorized by NWP 3typically do not require compensatory



mitigation, including vegetated buffers.There may be circumstances wherevegetated buffers will be required forutility line activities, if compensatorymitigation is necessary to ensure thatthe adverse effects on the aquaticenvironment are minimal. Activitiesauthorized by NWP 31 usually wouldnot require vegetated buffers, especiallyif the flood control authority does notown the land next to the flood controlfacility or compensatory mitigation wasrequired for the construction of thefacility or previous maintenanceactivities.

Regional ConditioningOne commenter supported the Corps

increased emphasis on regionalconditioning to ensure that the new andmodified NWPs authorize only thoseactivities that result in minimal adverseeffects on the aquatic environment.Numerous commenters objected toimposing regional conditions on thenew and modified NWPs and stated thatthe Corps should rely on case-specificspecial conditions instead of regionalconditions. Several commenters saidthat regional conditioning of the NWPsis unnecessary and contrary to thepurpose of the NWPs, which is toauthorize activities that have minimaladverse effects. Two commenterssuggested that the Corps impose morestringent national terms and conditionson the NWPs instead of relying onregional conditions. One commenterindicated that the Corps reliance onregional conditions for the new andmodified NWPs demonstrates that theseNWPs authorize activities with morethan minimal adverse effects. Twocommenters said that regionalconditions do not provide adequateprotection for wetlands.

We do not agree that only case-specific special conditions should beadded to NWPs. Regional conditions aremore effective at ensuring that NWPsauthorize only those activities withminimal adverse effects on the aquaticenvironment, individually andcumulatively. Regional conditions alsobenefit the regulated public byproviding them with advance notice ofadditional NWP restrictions andpromoting consistency in theimplementation of the NWP program.Regional conditions are necessarybecause aquatic resource functions andvalues vary considerably across thecountry. Utilization of regionalconditions is not contrary to the NWPprogram because those conditions helpensure that the NWPs do not authorizeactivities with more than minimaladverse effects on the aquaticenvironment.

Imposing more stringent nationalterms and limitations on the NWPsinstead of imposing regional conditionswould not be a practical alternative,because it would severely limit theability of the NWPs to authorize manyactivities that have minimal adverseeffects on the aquatic environment. It isfar more efficient to develop NWPs thatauthorize most activities that haveminimal adverse effects on the aquaticenvironment and allow division anddistrict engineers to limit the use ofthese NWPs or exercise discretionaryauthority in specific situations that mayresult in more than minimal adverseeffects on the aquatic environment. Forparticular regions of the country orspecific waterbodies where additionalsafeguards are necessary to ensure thatthe NWPs authorize only those activitieswith minimal adverse effects, regionalconditions are the appropriatemechanism. Case-specific discretionaryauthority or special conditions cannotsubstitute for regional conditions inmany cases, especially for those NWPactivities that do not require notificationto the District Engineer. For example,regional conditions can lower PCNthresholds for activities in high valuewaters to allow district engineers toreview those activities and determine ifthe work can be authorized by NWPs.Division and district engineers are muchmore knowledgeable about local aquaticresource functions and values and canprohibit or limit the use of the NWPs inhigh value waters. We contend thatregional conditioning of the NWPsprovides effective protection for highvalue wetlands and other aquatichabitats.

Several commenters indicated thatregional conditions should be moreconsistent between Corps districts. Oneof these commenters also stated thatregional conditions should be based onenvironmental factors and climate, notpolitical boundaries. One commenterrecommended Corps divisionboundaries as the smallest unit forconsistency in regional conditions.Another commenter suggested stateboundaries as the smallest unit forconsistency of regional conditions.Several commenters said that regionalconditions make it more difficult forcompanies that work in more than onestate to efficiently manage theiroperations to comply with the NWPs.

To a certain extent, regionalconditions are based on environmentalfactors but it is usually necessary toprovide some consistency withinpolitical boundaries, such as stateboundaries. Consistency within aparticular state is beneficial to theregulated public because it results in

more effective cooperation betweenstate agencies, such as the state agenciesresponsible for making Section 401 andCZMA determinations, and the Corps.In those states where more than oneCorps district is present, we haverecommended that those Corps districtsdevelop, to the extent practicable,consistent regional conditionsstatewide. However, we recognize thatthere may be certain regions within astate, such as specific high valuewaterbodies, that may warrant regionalconditions that are not necessary inother areas of that state. Differentregional conditions can be imposed inthose unique situations. Within Corpsdivision boundaries, there is often widevariability in aquatic resource functionsand values. Therefore, consistency inregional conditions at a scale larger thana state is contrary to the purpose of theregional conditioning process, which isto consider local differences in aquaticresource functions and values to ensurethat the NWPs do not authorizeactivities with more than minimaladverse effects on the aquaticenvironment. Companies that work inmore than one Corps district or morethan one state will have to comply withthe regional conditions established ineach district or within each state.

One commenter stated that the Corpsassertion that regional conditionscannot be elevated to headquarters isinconsistent with the regionalconditioning process established in theJuly 1, 1998, Federal Register notice.Three commenters indicated thatdivision engineers should be able toincrease the acreage limit of an NWP ordelete or modify conditions of an NWPthrough regional conditions andrecommended that the Corps revise itsregulations to provide divisionengineers with such authority.

The authority to require regionalconditions lies solely with divisionengineers and cannot be elevated to theHeadquarters level. The regulations forthe NWPs (33 CFR Part 330) clearly statethat the modification, suspension, orrevocation of any NWP on a regionalbasis is the decision of the divisionengineer. The regional conditioningprocess described in the July 1, 1998,Federal Register notice did not includeelevation of NWP regional conditions toheadquarters. Meetings between Corpsdistrict commanders and RegionalAdministrators of EPA and RegionalDirectors of the U.S. Fish and WildlifeService and National Marine FisheriesService were to occur to discussproposed regional conditions andresolve any disputes concerning thoseregional conditions (see 63 FR 36048).



As discussed in the July 21, 1999,Federal Register notice, division anddistrict engineers cannot use regionalconditioning to make the NWPs lessrestrictive. Only the Chief of Engineerscan modify an NWP to make it lessrestrictive, if it is in the national publicinterest to do so. Such a modificationmust go through a public notice andcomment process. However, if a Corpsdistrict determines that regional generalpermits (RGPs) are necessary foractivities not authorized by NWPs, thenthat district can develop and implementregional general permits to authorizethose activities, as long as those regionalgeneral permits comply with Section404(e) of the Clean Water Act. However,we have established a six monthmoratorium on RGPs and LOPs that aregermane to the new and modified NWPsto allow districts time to assess the trueneed for such RGPs and LOPs.

One commenter stated that theregional conditioning process violatesthe Administrative Procedures Act andthat proposed regional conditions mustbe published in the Federal Register forcomment. This commenter said thatposting draft regional conditions onInternet home pages providesinadequate notice because most citizensdo not use the Internet. This commenteralso requested that the Corps publish anotice in the Federal Register thatincludes all proposed regionalconditions to solicit public commentson those regional conditions. Severalcommenters objected to the regionalconditioning process because all draftregional conditions were not availablewhen the July 21, 1999, FederalRegister notice was published. Twocommenters said that regionalconditions should not be drafted orsubject to comment until the new andmodified NWPs are issued.

Regional conditions for the NWPs donot need to be published in the FederalRegister for public comment. It isimportant to remember that regionalconditions are issued by divisioncommanders, not Corps headquarters.District public notices for regionalconditions provide adequateopportunities for public comment. Sincethe proposed regional conditions do notaffect the process for issuing the newand modified NWPs, we do not agreethat it was necessary to have all draftregional conditions posted on districtInternet home pages at the same timethe July 21, 1999, Federal Registernotice was published. The 75-daycomment period provided adequateopportunities for the public to considerboth the July 21, 1999, Federal Registernotice and all draft regional conditionsproposed by Corps districts.

One commenter stated that it isdifficult for prospective permittees todetermine in which district theiractivities would occur andrecommended that the Corps makemaps of district boundaries available.One commenter suggested that highvalue waters subject to regionalconditioning include warm waterfisheries and waters with benthicmacroinvertebrates.

The Corps has a general map of Corpsdivision and district boundaries that isavailable on the Internet at http://www.usace.army.mil/inet/locations/bdry-pages/. This interactive map alsoprovides links to Corps district homepages. Due to the scale of this map andsince most Corps district boundaries arebased on watershed boundaries,prospective permittees should contactthe nearest Corps district office todetermine which Corps district willreview their PCN or permit application.Division engineers can determine thatwaters of the United States supportingwarm water fisheries or benthicmacroinvertebrates are high valuewaters that should be subject to regionalconditioning.

Essential Fish HabitatFor the proposed new and modified

NWPs published in the July 21, 1999,Federal Register notice, we conductedprogrammatic Essential Fish Habitat(EFH) consultation with the NationalMarine Fisheries Service (NMFS),pursuant to Section 305(b)(2) of theMagnuson-Stevens FisheryConservation and Management Act. Inresponse to our request forprogrammatic consultation, NMFS madetwo programmatic EFH conservationrecommendations. The first EFHconservation recommendation was forCorps districts to work with NMFSregional offices to the extent necessaryto develop NWP regional conditionsthat conserve EFH and are consistentwith NMFS regional EFH conservationrecommendations. The second EFHconservation recommendation indicatedthat paragraph (e) of General Condition13, which states that district engineerswill provide no responses to resourceagency comments on PCNs, should notapply to EFH conservationrecommendations provided by NMFS.

We concur with both of these EFHconservation recommendations. Wehave directed our district offices ingeographic regions with EFH tocoordinate with NMFS regional officesto develop, to the extent necessary,regional conditions for the new andmodified NWPs that conserve EFH andare consistent with NMFS regional EFHconservation recommendations. In

addition, we have added a sentence toparagraph (e) of General Condition 13 torequire district engineers to respond toNMFS within 30 days of receipt of anyEFH conservation recommendations.This requirement is necessary to complywith section 305(b)(4)(B) of theMagnuson-Stevens FisheryConservation and Management Act.

Workload Implications of the New andModified Nationwide Permits

A large number of commenters statedthat the lower acreage limits and PCNrequirements of the new and modifiedNWPs, as well as the three proposedgeneral conditions, will result insubstantial increases in the number ofstandard permit applications processedby the Corps and processing times forall Section 404 permits. Manycommenters objected to the proposedNWPs because the Corps did notexplain how it will handle the increasein workload. A number of commenterssaid that if the proposed changes to theNWP program are implemented, theCorps will need to increase its resourcesto process the additional standardapplications and PCNs in a timelymanner. One commenter said that thecumulative impact analysisrequirements will increase the Corpsworkload while another commentercited regional conditions as anotherfactor that will increase the Corpsworkload.

One commenter predicted that theCorps will experience an increase of17,000 individual permit applicationsper year. Another commenter estimatedan increase of 2,000 individual permitsper year as a result of the proposedchanges. This commenter also predictedthat average individual permitprocessing times will increase from 89days to 350 days over the next six yearsand estimates that the permitapplication carryover will doubleduring that time period.

The workload and compliance costsstudy conducted by IWR, andmentioned above in the overview, forthe proposal published in the July 21,1999, Federal Register showed that theproposed NWP package would result ina 50% increase in the number ofstandard individual permit applicationsreceived by the Corps per year. Thestudy estimated that the Corps wouldreceive 4,429 additional standard permitapplications per year and receive 2,878fewer NWP PCNs per year. As a resultof the increased standard permitworkload, the average amount of timethat it takes for the Corps to processpermit applications would increasethree to four times within five years.Likewise, the permit application



backlog would increase by the sameamount during that five year period.

The changes to the new and modifiedNWP issued today, including the 1⁄2 acrelimit and the modification of the generalcondition for fills in 100-yearfloodplains, are estimated to result in40% fewer standard permit applicationscompared to the proposal published inthe July 21, 1999, Federal Register.Also, the standard permit processingtimes and the permit applicationbacklog would increase by one and ahalf to two times the amount for FY1998.

We have also reviewed an analysis,based on the July 21, 1999, proposal,that was conducted on behalf of theNational Association of Counties. Thisanalysis examined the impacts of theJuly 21, 1999, proposal on the Corpsworkload and costs to the Corps and theregulated public.

We have not proposed any changes toour approach for analyzing cumulativeadverse effects on the aquaticenvironment cause by NWPs. Therefore,cumulative adverse effect analysis willnot impose additional workload onCorps district offices. Although regionalconditions will cause some increases inthe Corps workload, those increases aremanageable and necessary to ensure thatthe NWPs do not authorize activitiesthat result in more than minimaladverse effects on the aquaticenvironment.

One commenter said that theincreases in workload caused by thethree proposed general conditions areoffset by the increased scope ofapplicable waters for these NWPs,because many of these activities wouldhave required individual permits whenNWP 26 was in place. In contrast,another commenter stated that theproposed NWPs will result in moreindividual permit applications becausethe new NWPs do not authorizeactivities in tidal waters.

We do not agree that the largergeographic scope of the new NWPs,when compared to the geographic scopeof NWP 26, will offset the increase inworkload caused by the new NWPgeneral conditions. For example,General Condition 26 prohibitsdischarges of dredged or fill materialinto waters of the United States within100-year floodplains of stream segmentsbelow headwaters. Since NWP 26 didnot authorize discharges of dredged orfill material into tidal waters,prohibiting the use of the new NWPs intidal waters will not cause any increasesin the number of individual permitapplications processed by the Corps.

Other Issues

In response to the July 21, 1999,Federal Register notice, somecommenters raised additional issuesrelated to the new and modified NWPs.Several commenters expressed concernthat none of the new and modifiedNWPs authorize oil and gasdevelopment facilities. Thesecommenters said that NWP 26 was usedto authorize these facilities where noregional general permits (RGPs) areavailable and recommended that theCorps develop such an NWP. Onecommenter suggested that the Corpsmodify NWP 39 to authorize oil and gaswells as industrial facilities.

When we developed the new andmodified NWPs that will replace NWP26, we considered an NWP to authorizeoil and gas facilities. However, when wesurveyed Corps districts to determinehow frequently such an NWP would beused, we found that there was littleneed for this NWP because most of thedistricts that frequently authorize oiland gas facilities have issued RGPs toauthorize these activities. Thedevelopment of RGPs for this activity ismore appropriate than developing a newNWP. We do not agree with therecommendation to modify NWP 39 toauthorize these activities, because NWP39 authorizes building pads andattendant features, and oil and gas wellsare not buildings.

Two commenters recommended thatthe Corps develop an NWP to authorizethe construction of fish passage facilitiesand other stream enhancementactivities, such as relocating a portion ofa stream channel to provide properalignment for fish passage, becausethese activities were authorized by NWP26.

We do not agree that there issufficient need to develop a new NWPto authorize the construction of fishpassage facilities. Stream enhancementactivities may be authorized by NWP 27,provided the proposed work meets theterms and conditions of this NWP.Discharges into waters of the UnitedStates associated with the constructionof fish passage facilities may also beauthorized by other NWPs, RGPs, orindividual permits.

Several commenters requested thatthe Corps reverse its decision towithdraw NWP B, which was proposedin the July 1, 1998, Federal Registernotice to authorize master planneddevelopment activities. One of thesecommenters stated that the withdrawalof proposed NWP B is contrary to‘‘smart growth’’ initiatives.

Our decision to withdraw NWP B isdiscussed in the October 14, 1998, and

July 21, 1999, Federal Register notices.We have not changed our position onthis matter, but we could propose anNWP for master planned developmentactivities at a later time. We do not agreethat the withdrawal of NWP B iscontrary to smart growth initiatives,because developments that are part ofsmart growth planning efforts can beauthorized by other NWPs, such asNWP 39, RGPs, and individual permits.

One commenter objected to the draftNWPs, stating that they do not authorizecertain activities associated withrailroad operations, such as thecompletion of drainage improvementsalong unstable embankments, bankstabilization to protect tracks from slideevents, small fills associated with theinstallation of signals and switches, andthe construction of miscellaneousstructures associated with railroadtracks.

Some of these activities can beauthorized by existing NWPs, includingsome of the NWPs modified today. Forexample, bank stabilization activities toprotect railroad tracks from slide eventsmay be authorized by NWP 13. Smallfills associated with the installation ofsignals, switches, and minor drainageimprovements may be authorized byNWP 18. NWP 14 may also be used toauthorize some activities associatedwith railroads, since railways are lineartransportation projects. These activitiescan also be authorized by RGPs andindividual permits, if they do notqualify for authorization under the NWPprogram.

Two commenters said that a newNWP should be developed to authorizethe construction of flood controlimprovements, including structures andfills for flood control facilities. Twocommenters stated that the new andmodified NWPs and regional conditionswill make it more difficult to maintaina previously authorized flood-controlfacility.

We do not agree that a new NWPshould be developed for theconstruction of flood control facilities.Such activities are likely to result inmore than minimal adverse effects onthe aquatic environment by reducing oreliminating the natural functions andvalues of open waters, includingstreams, and floodplains. Flood controlactivities may be authorized by NWPs,RGPs, or individual permits. The newand modified NWPs will not make itmore difficult to maintain flood controlfacilities. We have withdrawn theproposed general condition for impairedwaters. General Condition 26, Fills in100-year Floodplains, does not apply toNWP 31, which authorizes the



maintenance of existing flood controlfacilities.

One commenter requested that theCorps develop a new NWP to authorizeabandoned mined land cleanupactivities, since NWP 27 does notauthorize all of these activities. Thiscommenter said that NWP 26 was usedto authorize these activities.

During the reissuance process for theexisting NWPs that will begin in 2001,we will consider developing an NWP toauthorize discharges of dredged or fillmaterial into waters of the United Statesfor abandoned mined land cleanupprojects.

One commenter recommended thatthe Corps revoke the NWPs in allwatersheds or sub-basins that haveexceeded 8% imperviousness. Anothercommenter suggested that the Corpscondition the NWPs to encourage orrequire planting of native plant speciesin areas that are impacted by NWPactivities, because such a conditionwould support Executive Order 13112,entitled ‘‘Invasive Species.’’ Twocommenters said that the Corps shoulddevelop and implement a classificationsystem that assesses the potential forrestoring or enhancing degradedwetlands to encourage restoration orenhancement, instead of issuing permitsto fill these areas.

We do not agree that the NWPsshould be revoked simply because theamount of impervious surface within aparticular watershed has exceeded acertain threshold. District engineers willmonitor the use of the NWPs to ensurethat the NWPs do not authorizeactivities with more than minimaladverse effects on the aquaticenvironment, individually orcumulatively. We cannot require allpermittees to plant native species atsites impacted by activities authorizedby NWPs, but they are encouraged forvegetated buffers. While we encouragerestoration and enhancement ofdegraded wetlands as compensatorymitigation for activities authorized byDA permits, including NWPs, we cannotdevelop a classification system toidentify these areas and prohibitdischarges of dredged or fill materialinto those waters.

Two commenters requested that thefinal notice announcing the issuance ofthe new and modified NWPs include astatement that the three new NWPconditions proposed in the July 21,1999, Federal Register notice shouldnot become conditions on all Corpspermits, including individual permits.Two commenters said that any regionalgeneral permits or Section 404 letters ofpermission issued by Corps districts

must include the three proposed newNWP general conditions.

We agree that the proposed generalconditions limiting the use of NWPs indesignated critical resource waters,impaired waters, and waters of theUnited States within 100-yearfloodplains should not be incorporatedinto all Corps permits. RGPs issued byCorps districts can authorize onlyactivities that result in minimal adverseeffects on the aquatic environment.Since RGPs are local solutions forimplementing the Corps regulatoryprogram, these general permits willthoroughly address local concerns forthe aquatic environment. Therefore, it isnot necessary for all RGPs issued bydistrict engineers to contain conditionslimiting their use in designated criticalresource waters, impaired waters, andwaters of the United States within 100-year floodplains. Standard permits aresubject to the public interest reviewprocess, which considers impacts topublic interest factors, including criticalresource waters, impaired waters, andwaters of the United States within 100-year floodplains.

One commenter recommended thatthe Federal Register notice announcingthe final new and modified NWPscontain a compilation of all regulatoryinformation concerning the NWPs tomake the preamble discussionsavailable to the regulated public.Another commenter indicated that theCorps cannot issue provisional NWPauthorizations in states that have deniedwater quality certification for thoseNWPs.

All Federal Register noticesconcerning the new and modified NWPsare currently available to the public.Due to the length of these notices andthe many changes that have occurredsince these NWPs were initiallyproposed on July 1, 1998, it would beimpractical to compile the preambles forall of these notices into one document.In the July 21, 1999, Federal Registernotice (64 FR 39261), we addressedcomments concerning the issuance ofprovisional NWP verifications and wehave not changed our position on thismatter.

One commenter said that the newNWPs and general conditions shouldnot become effective until six to ninemonths after the new NWPs are issued,so that activities that have already beenplanned can proceed under the NWPsissued in 1996. One commenter objectedto using NWPs to authorize theexpansion of existing projects, statingthat this discourages avoidance andminimization of losses of waters of theUnited States. One commenter statedthat the new and modified NWPs

should address impacts to priorconverted cropland. Severalcommenters said that NWP 29 should berevoked.

The new and modified NWPs,including the new and modified generalconditions, will become effective onJune 5, 2000. Until the effective date ofthe new and modified NWPs andgeneral conditions, the current NWPs(as published in the December 13, 1996,Federal Register) are applicable.Permittees that begin work, or are undercontract to begin work, prior to theeffective date of the new and modifiedNWPs, have one year to complete thework under the term and conditions ofthe NWPs issued in 1996. However, ina notice published in the December 15,1999, issue of the Federal Register (64FR 69994), we established a procedurefor processing NWP 26 PCNs. We do notagree that a longer implementationschedule is necessary. In addition, anextended implementation schedulewould be contrary to our intent toreplace NWP 26 with activity-specificNWPs that authorize activities withminimal adverse effects on the aquaticenvironment.

The use of NWPs to authorize theexpansion of existing projects does notdiscourage avoidance and minimizationof activities in waters of the UnitedStates. These activities are required tocomply with all NWP terms andconditions, including General Condition19, and must result only in minimaladverse effects on the aquaticenvironment. The new and modifiedNWPs do not need to address impactsto prior converted cropland, since theseareas are not waters of the United States.If prior converted cropland isabandoned and reverts back tojurisdictional wetlands, then those areasare subject to the permit requirements ofSection 404 of the Clean Water Act. Wedo not agree that NWP 29 should berevoked, since it authorizes singlefamily housing activities with minimaladverse effects on the aquaticenvironment.

III. Comments and Responses onSpecific Nationwide Permits

3. Maintenance: In the July 21, 1999,Federal Register notice, we proposed tomodify this NWP to authorize theremoval of accumulated sediment in thevicinity of existing structures andauthorize activities in waters of theUnited States associated with therestoration of uplands damaged bystorms, floods, or other events. Theseadditional activities are in paragraphs(ii) and (iii), respectively, of this NWP.

One commenter said that theproposed modifications are not



maintenance activities and should notbe authorized by this NWP. Somecommenters requested clarificationwhether this NWP only applies toactivities not statutorily exempt undersection 404(f)(1)(B) of the Clean WaterAct. One commenter objected to thisNWP, stating that it is used to changeexisting projects to different usecategories. Another commenter askedwhat is meant by the phrase ‘‘minordeviations in the structure’sconfiguration or filled area.’’

We believe that the activitiesauthorized by paragraphs (ii) and (iii) ofthis NWP are maintenance activities.The note at the end of this NWP statesthat NWP 3 authorizes the repair,rehabilitation, or replacement of anypreviously authorized structure or fillthat does not qualify for the Section404(f) exemptions for maintenance. Thefirst sentence of paragraph (i) explicitlystates that NWP 3 does not authorizechanges in use for the authorizedstructure or fill. The phrase ‘‘minordeviations in the structure’sconfiguration or filled area’’ allows theproject proponent to make minorchanges to a previously authorizedstructure or fill during the repair ormaintenance activity so that thestructure or fill complies with currentconstruction standards or otherregulations.

Several commenters supported theremoval of the notification requirementfrom paragraph (i) of this NWP. Onecommenter said that replacementactivities should allow reconfigurationof structures such as marina piers. Onecommenter believes that paragraph (i)contains contradictory language becauseit authorizes the repair, replacement, orrehabilitation of previously authorized,currently serviceable structures or fillsand the replacement of structuresdestroyed by storms. Anothercommenter said that some maintenanceactivities take longer than two years andrecommended that the NWP bemodified to accommodate those longerrepair periods. One commenterrecommended that the NWP authorizethe use of cofferdams duringmaintenance activities.

The reconfiguration of marinas isauthorized by NWP 28. Thereconfiguration of other types ofstructures may be authorized by otherNWPs, regional general permits, orindividual permits. Authorizing therepair of currently serviceable structuresor fills and the replacement of structuresor fills damaged by storms, floods, orother discrete events is notcontradictory because both of theseactivities are maintenance activities thattypically have minimal adverse effects

on the aquatic environment. Theseprovisions are also consistent with theSection 404(f) exemptions formaintenance. We do not agree that it isnecessary to increase the two-year limitfor maintenance activities because thisamount of time is adequate for mostmaintenance activities. In addition,NWP 3 contains a provision that allowsdistrict engineers to waive this timelimit. The use of cofferdams duringmaintenance activities may beauthorized by NWP 33.

Some commenters recommendedremoving the proposed limitations inparagraph (ii) of NWP 3. Severalcommenters suggested adding acreagelimits to paragraph (ii) and otherssuggested that the 200 linear foot limitshould be reduced to 50 feet. Onecommenter stated that this provision isunnecessary and that NWP 3 should notbe modified to authorize this activity.Another commenter said that paragraph(ii) should not authorize the installationof rip rap.

We believe that the 200 linear footlimit for the removal of accumulatedsediments in the vicinity of existingstructures is appropriate and will ensurethat this NWP authorizes only activitieswith minimal adverse effects on theaquatic environment. The removal ofaccumulated sediments allowsstructures to continue to functionproperly and ensure the safety of theusers of the structure. The installation ofrip rap is often necessary to protectthese structures after the accumulatedsediment is removed and should beauthorized by this NWP as part of thesingle and complete project.

One commenter supported paragraph(iii) of the proposed modification ofNWP 3, which authorizes activities inwaters of the United States associatedwith the restoration of uplands damagedby storms and other discrete events. Onecommenter said that paragraph (iii) isunnecessary because these activitiesshould be considered exempt and bankstabilization can be authorized by NWP13. One commenter stated that theactivities authorized by paragraph (iii)will have more than minimal adverseeffects on the aquatic environment. Twocommenters objected to the proposedmodification, stating that it wouldprevent natural stream processes fromoccurring and allow streamchannelization. A commenter said thatthis NWP should not authorize bankstabilization activities in floodplains.Another commenter stated that separateauthorization should not be required ifexcavated material is used to replacematerial that is lost as a result oferosion. One commenter recommendedmodifying the text of paragraph (iii) to

state that the NWP does not authorizethe replacement of uplands lost throughgradual erosion processes.

The intent of paragraph (iii) of NWP3 is to authorize activities in waters ofthe United States associated with thereplacement of uplands that aredamaged as a result of storms and othercatastrophic events. The restoration ofuplands damaged as a result of stormsand other catastrophic events is exemptfrom Section 404 permit requirements,as long as the upland area is replaced toits original extent. For example, ahurricane may cause substantial erosionand destroy a section of a roadconstructed in uplands or on apermitted fill. The restoration of thoseuplands or the permitted fill and thereplacement of the destroyed road areexempt from Section 404 permitrequirements, provided the area isrepaired to its original extent. However,the restoration work may involveactivities in waters of the United States,which are authorized by paragraph (iii),provided those activities comply withthe terms and conditions of NWP 3. Wemaintain our position that this is amaintenance activity that should beauthorized by NWP 3. Paragraph (iii)does not authorize new streamchannelization or stream relocationactivities. We believe that bankstabilization is a necessary componentof this activity and should be authorizedby paragraph (iii) as part of the singleand complete project. We concur withthe last comment in the previousparagraph and have made theappropriate modification of the text ofparagraph (iii).

One commenter indicated that thedistrict engineer should have discretionover which flood damage repairactivities require notification andanother commenter said thatnotification should not be required forany of these activities. One commentersuggested that the 50 cubic yard limitfor removal of obstructions should bereplaced with 500 linear foot and 1⁄3acre limits.

We contend that notification shouldbe required for all of the activitiesauthorized by paragraph (iii) to ensurethat these activities result in minimaladverse effects on the aquaticenvironment. We do not agree that the50 cubic yard limit for the removal ofobstructions should be replaced with500 linear foot or 1⁄3 acre limits.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. The



issuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which requiresnotification for activities in designatedcritical resource waters. NWP 3 isreissued with the modificationsdiscussed above.

7. Outfall Structures andMaintenance: In the July 21, 1999,Federal Register notice, we proposed tomodify NWP 7 to authorizemaintenance excavation, includingdredging, to remove accumulatedsediments from intake or outfallstructures and canals associated withthese structures.

Several commenters stated that themaintenance activities authorized by theproposed modification of this NWP areexempt from permit requirements.Numerous commenters indicated thatthe removal of accumulated sedimentsshould be authorized by NWP 3 and thatthe modification of this NWP isunnecessary. Several commentersrequested clarification regarding whattypes of maintenance activities areauthorized by this NWP. Anothercommenter said that the Corps shouldwithdraw the proposed modification.This commenter also recommendedprohibiting removal of material inspecial aquatic sites and smallimpoundments. One commenter saidthat the construction of outfallstructures that does not involvedischarges of dredged or fill materialinto waters of the United States shouldnot require a Corps permit.

Maintenance dredging to removeaccumulated sediments from intake andoutfall structures in Section 10 waters isnot exempt from Corps permitrequirements. Although the removal ofaccumulated sediments in the vicinityof existing structures is authorized byparagraph (ii) of NWP 3, there aremaintenance dredging or excavationactivities associated with intake andoutfall structures that do not meet theterms and conditions of NWP 3 andcould be authorized by NWP 7. The textof this NWP clearly states whichmaintenance activities are authorized byNWP 7. District engineers will reviewPCNs for maintenance activities inspecial aquatic sites and smallimpoundments to ensure that theadverse effects on the aquaticenvironment are minimal. Outfallstructures constructed in Section 10waters require a Corps permit, even ifthere are no associated discharges ofdredged or fill material into waters ofthe United States.

One commenter said that acreage andlinear limits should be imposed on thisNWP. Several commenters contend thatthis NWP should not authorize activitiesin tidal waters or special aquatic sites.One commenter stated that this NWPshould not authorize maintenanceactivities associated with aquaculturefacilities or power plants. A commenterremarked that maintenance excavationand dredging activities could result inmore than minimal adverse effects onthe aquatic environment and thatnotification should be required for allactivities authorized by this NWP.Another commenter objected to therequirement for notification for allactivities authorized by this NWP.

We do not agree that it is necessaryto impose acreage or linear foot limitson the activities authorized by this NWPor restrict the applicable waters becauseall activities authorized by this NWPrequire notification to the districtengineer. The removal of accumulatedsediments from outfall and intakestructures associated with aquaculturefacilities and power plants is necessaryto ensure the efficient operation of theseinstallations. The district engineer willreview these PCNs to ensure that theNWP authorizes only those activitieswith minimal adverse effects on theaquatic environment.

One commenter said that delineationsof special aquatic sites should belimited to the impact area or within 200feet of the proposed activity. Twocommenters stated that it is unnecessaryto require delineations of special aquaticsites since this NWP authorizesmaintenance activities. One commenterremarked that there should be aprovision in the NWP that allowsmaintenance of existing structures whenthe original design capacities andconfigurations are not available.Another commenter said that paragraph(d) of the proposed modification shouldbe removed because this requirement isalready addressed by General Condition3.

The text of this NWP states that therequirement for delineations of specialaquatic sites is limited to the vicinity ofthe proposed work. The delineation ofspecial aquatic sites, especiallyvegetated shallows, is necessary toensure that the NWP authorizes onlyactivities with minimal adverse effectson the aquatic environment. If theoriginal design capacities andconfigurations of the facility are notavailable, district engineers will usetheir judgement to determine if theproposed work is authorized by thisNWP. The requirements of paragraph (d)of this NWP and General Condition 3are not the same. Therefore, we believe

that paragraph (d) is necessary to ensurethat NWP 7 authorizes only activitieswith minimal adverse effects on theaquatic environment.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. NWP 7 is reissued with themodifications discussed above.

12. Utility Line Activities: In the July21, 1999, Federal Register notice, weproposed to modify NWP 12 toauthorize utility line substations;foundations for overhead utility linetowers, poles, and anchors; andpermanent access roads for theconstruction and maintenance of utilitylines.

Many commenters supported theproposed modifications, but a fewcommenters opposed the proposedmodifications. Several commentersbelieve that this NWP will authorizeactivities with more than minimaladverse effects on the aquaticenvironment. One commenter said thatNWP 12 should have a maximum limitof 2 acres for a single and completeutility line activity and anothercommenter suggested a 1⁄3 acre limit.One commenter supported the 1⁄4 acrePCN threshold and also recommendedrequiring notification for activities thatresult in the loss of greater than 100linear feet of stream bed, with agencycoordination for activities that result inthe loss of greater than 250 linear feetof stream bed. Another commenter saidthat the PCN threshold should be 1⁄3acre. One commenter requestedclarification concerning the emergencyauthorization of utility line activities.

The terms and conditions of thisNWP, including PCN requirements, willensure that NWP 12 will authorize onlyactivities with minimal individual andcumulative adverse effects on theaquatic environment. We do not agreethat an overall acreage limit isappropriate for this NWP, since many ofthe impacts to waters of the UnitedStates caused by the construction andmaintenance of utility lines will betemporary. Acreage limits and PCNthresholds for specific activitiesauthorized by this NWP are discussedbelow. This NWP can be used toauthorize the emergency installation,



replacement, or repair of utility lines inwaters of the United States. Emergencyprocedures for the Corps regulatoryprogram are discussed in 33 CFR325.2(e)(4).

One commenter said that this NWP istoo restrictive for the installation ofunderground gas transmission lines.Two commenters stated that this NWPshould authorize wirelesscommunication towers. Anothercommenter suggested that well drillingfluid flowlines should be authorized bythis NWP. One commenter said thatpipeline maintenance activities shouldbe exempt from permit requirements. Acommenter stated that PCNs should berequired for all underground utilitylines to ensure that the installation ofthose utility lines does not drainwetlands. Another commenter said thatsidecast material from utility lineinstallation should be removed within30 days. One commenter indicated thatutility lines constructed in waters of theUnited States parallel to streambedsshould be limited to 500 feet in lengthto ensure that those activities result inminimal adverse effects on the aquaticenvironment.

This NWP authorizes theconstruction, maintenance, and repair ofutility lines, including underground gastransmission lines, that have minimaladverse effects on the aquaticenvironment. We do not agree that theterms for underground transmissionlines are too restrictive. This NWP doesnot authorize wireless communicationtowers because these facilities are notutility lines. Well drilling fluidflowlines are not authorized by thisNWP, because they are not utility lines.The construction or installation ofwireless communication towers or welldrilling fluid flowlines in waters of theUnited States can be authorized byindividual permits, regional generalpermits, or other NWPs. Pipelinemaintenance activities can beauthorized by this NWP or NWP 3,although some pipeline maintenanceactivities may be eligible for the Section404(f) exemption. This NWP containsspecific terms to ensure that theinstallation of utility lines does notdrain wetlands. This NWP does notauthorize the installation of utility linesthat result in french drains. We believethat the 180 day limit is appropriate fortemporary sidecasting of excavatedmaterial, but division engineers canregionally condition this NWP to reducethis time period, if such a reduction isnecessary to ensure that the NWPauthorizes only activities with minimaladverse effects. Paragraph (d) of the‘‘Notification’’ section of this NWP willallow district engineers to review

proposed utility lines to be installed inwaters of the United States parallel tostream beds and ensure that theseactivities result in minimal adverseeffects on the aquatic environment.

One commenter requestedclarification whether a Corps permit isrequired if the United States CoastGuard does not require a permit underSection 9 of Rivers and Harbors Act.Another commenter said that pipelinesare transportation structures.

A Section 10 permit is not requiredfor utility lines constructed overnavigable waters of the United States totransport gaseous, liquid, liquifiable, orslurry substances, because thesestructures are considered bridges whichare regulated under Section 9, notSection 10, of the Rivers and HarborsAct. Pipelines constructed overnavigable waters may be consideredbridges under Section 9 of the Riversand Harbors Act.

Two commenters supported theinclusion of utility line substations inthe proposed modification of this NWP.One commenter said that the acreagelimit of utility line substations shouldbe 1⁄4 acre. Several commentersrecommended adding ‘‘storagefacilities’’ to paragraph (ii) to authorizethese activities with utility linesubstations. Two commenters requesteda definition of the term ‘‘substation.’’One commenter said that this NWPshould not authorize the construction ofsubstations in floodplains. Anothercommenter stated that electric andpumping substations should be sited inuplands.

We have changed the acreage limit forthe construction or expansion of utilityline substations to 1⁄2 acre, to ensure thatthis NWP authorizes only activities withminimal adverse effects on the aquaticenvironment. Notification is requiredfor discharges of dredged or fill materialresulting in the loss of greater than 1⁄10

acre of non-tidal waters of the UnitedStates for the construction or expansionof utility line substations.

We do not agree that storage facilitiesshould be included with utility linesubstations. These facilities may beauthorized by NWPs, regional generalpermits, or individual permits. The term‘‘utility line substations’’ includespower line substations, lift stations,pumping stations, meter stations,compressor stations, valve stations,small pipeline platforms, and otherfacilities integral to the operation of autility line. There are situations whereutility line substations must be locatedin waters of the United States within100-year floodplains or other waters ofthe United States. Utility linesubstations constructed in waters of the

United States within 100-yearfloodplains must comply with GeneralCondition 26.

One commenter recommendedlimiting foundations for overhead utilityline towers, poles, and anchors to 1 acreor 250 linear foot of stream bed. Thiscommenter also said that losses ofwaters of the United States resultingfrom the installation of overhead utilityline towers, anchors, and poles shouldbe included with the impacts caused byutility line substations whendetermining if an activity meets theacreage limits of this NWP.

We do not believe it is necessary toimpose an acreage limit on foundationsfor overhead utility line towers, poles,and anchors, but division engineers canregionally condition this NWP toimpose such limits if it is necessary toensure that the NWP authorizes onlyactivities with minimal adverse effectson the aquatic environment. We do notagree that foundations for overheadutility line towers, poles, and anchorsshould be included with the acreagelimit for utility line substations. Forthose utility line activities that requirenotification, district engineers willreview PCNs to ensure that theseactivities result in minimal adverseeffects on the aquatic environment.

One commenter objected to theproposed modification to authorize theconstruction of permanent access roadsin waters of the United States. Anothercommenter asked whether permanent ortemporary access roads are authorizedby paragraph (iv) of this NWP. Onecommenter said that the 1 acre limit istoo high and recommended a 1⁄10 acrelimit for permanent access roads.Another commenter recommended a250 linear foot limit on stream bedimpacts for the construction of accessroads. One commenter asked if the 500linear foot PCN threshold for permanentaccess roads constructed above-grade inwaters of the United States applies to anentire project or a single crossing.

Permanent access roads are necessaryfor the operation and maintenance ofutility lines and should be authorizedby this NWP as part of a single andcomplete utility line project. Paragraph(iv) of the NWP authorizes onlypermanent access roads; temporaryaccess roads can be authorized by NWP33. We have changed the acreage limitfor above-grade permanent access roadsto 1⁄2 acre, to ensure that this NWPauthorizes activities with minimaladverse effects on the aquaticenvironment. We do not agree that it isnecessary to impose a 250 linear footlimit on stream bed impacts for accessroads, since most of the access roadswill be constructed perpendicular to



streams. The 500 linear foot PCNthreshold for access roads applies toeach single and complete crossing (see33 CFR 330.2(i)).

One commenter supported theprovision requiring access roads to beconstructed with pervious surfaces. Twocommenters objected to thisrequirement. One of these commentersnoted that it may not be possible toutilize pervious surfaces, because thosematerials may not be practicable, stable,or safe in certain situations.

We have deleted the last sentence ofparagraph (iv) to allow this NWP toauthorize permanent access roadsconstructed with impervious material.However, to ensure that permanentaccess roads constructed withimpervious material result in minimaladverse effects on the aquaticenvironment, we have added paragraph(g) to the ‘‘Notification’’ section torequire notification when access roadsfor utility lines are constructed withimpervious materials.

One commenter requestedclarification whether this NWPauthorizes mechanized landclearingnecessary to maintain a previouslyestablished utility line right-of-way. Onecommenter said that this NWP shouldnot authorize mechanized landclearingof forested wetlands, unless the acreageand functions of those wetlands arereplaced. Several commenters objectedto the requirement for mitigation tooffset permanent adverse effects towaters of the United States, such as theconversion of forested wetlands toemergent wetlands in permanentlymaintained utility line right-of-ways.One commenter objected to the languagein the NWP that excludes temporaryadverse effects due to filling, flooding,excavation, or drainage from thecalculation of permanent losses ofwaters of the United States. Onecommenter said that mitigation plansshould be required with all PCNs. Twocommenters supported the Corpsposition that it does not regulategroundwater flow. Another commentersaid that this NWP should beconditioned to prohibit impacts togroundwater.

This NWP authorizes mechanizedlandclearing that is necessary tomaintain an existing utility line right-of-way, provided the cleared area is keptto the minimum necessary andpreconstruction contours aremaintained as close as possible. Districtengineers will require mitigation for thepermanent conversion of wetland typesto ensure that utility line activities willresult in minimal adverse effects on theaquatic environment. Impacts to watersof the United States due to temporary

filling, flooding, excavation, or drainageshould not be considered as permanentlosses, because this NWP requires therestoration of temporarily affectedwaters of the United States. We do notagree that it is necessary to require thesubmission of mitigation plans with allPCNs, because compensatory mitigationis not required for all utility lineactivities. We maintain our position thatwe do not regulate groundwater flows,but district engineers may consideradverse effects to groundwater whenreviewing PCNs.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. For utility line activitiesresulting in discharges of dredged or fillmaterial into waters of the United Stateswithin 100-year floodplains, GeneralCondition 26 requires the permittee tonotify the district engineer anddemonstrate that the proposed workcomplies with FEMA or FEMA-approved local floodplain constructionrequirements. NWP 12 is reissued withthe modifications discussed above.

14. Linear Transportation Crossings:In the July 21, 1999, Federal Registernotice, we proposed to modify NWP 14to authorize the construction,expansion, modification, orimprovement of linear transportationcrossings, with a higher acreage limit forpublic linear transportation crossingsconstructed in non-tidal waters,excluding non-tidal wetlands adjacentto tidal waters.

Two commenters said that theproposed modification of NWP 14 willauthorize activities with more thanminimal adverse effects on aquaticenvironment. Two commenters said thatthis NWP should have the same termsand conditions as NWPs 41 and 43because these NWPs authorize similaractivities.

The terms and conditions of this NWPwill ensure that only activities withminimal adverse effects on the aquaticenvironment will be authorized. Mostactivities authorized by this NWPrequire notification to the districtengineer, which will allow case-by-casereview of proposed NWP 14 activities.NWPs 14, 41, and 43 authorizedistinctly different activities and should

not contain the same terms. However,these NWPs can be combined toauthorize a single and complete project,provided the activity complies withGeneral Condition 15.

One commenter supported limitingthe modification of this NWP to theauthorization of linear transportationcrossings. Another commenter said thatthis NWP should not authorize newlinear transportation crossings. Acommenter stated that the maintenanceof road crossings should be exempt frompermit requirements and that NWP 14should be needed only for theconstruction of new crossings. Onecommenter indicated that this NWPshould be limited to the construction ofspan bridges and should not authorizeculverted crossings. A commenter saidthat the NWP should authorize integralfeatures associated with the lineartransportation crossing. One commenterobjected to the proposed modification,stating that it should not authorize theexpansion of airport runways. Twocommenters said that the term ‘‘public-use airport’’ should be used whendescribing airport runways that are to beused by the general public andconsidered as public transportationcrossings.

We have not changed the categories ofauthorized activities from the proposedmodification of NWP 14 published inthe July 21, 1999, Federal Registernotice. Some road crossing maintenanceactivities may qualify for the Section404(f) exemption and not require a DApermit. Maintenance activities thatrequire changes in the configuration ordesign of the linear transportationcrossing are authorized by this NWP,provided the work meets the terms andconditions of the NWP and results inminimal adverse effects on the aquaticenvironment. We do not agree that thisNWP should be limited to span bridges.Culverts and fords can be used toconstruct linear transportation crossingsthat have minimal adverse effects on theaquatic environment. Features that arean integral part of the lineartransportation crossing, such asinterchanges, rail spurs, stormwaterdetention basins, and water qualityenhancement measures are authorizedby this NWP. However, this NWP can becombined with other NWPs to authorizea single and complete project providedthe activity complies with therequirements of General Condition 15.We maintain our position that this NWPshould authorize the expansion ofairport runways. We do not agree that itis necessary to incorporate the term‘‘public-use airport’’ in the text of theNWP. District engineers will determineon a case-by-case basis whether the



construction of a linear transportationcrossing for an airport is a public orprivate activity.

Several commenters objected to thedifferentiation between public andprivate linear transportation crossingsfor the acreage limits of the proposedmodification of this NWP. Twocommenters agreed that public lineartransportation crossings should havehigher acreage limits under this NWP.One commenter requested clearerdefinitions of the terms ‘‘public’’ and‘‘private’’ as used in the context of thisNWP. This commenter asked if thedetermination whether a particularactivity is public or private dependsupon the users of the lineartransportation crossing or the projectproponent. For example, if a privatedeveloper is required to build a roadthat will be used by the general publicas a condition of subdivision approval,would that road be considered a publicor private road for the purposes of thisNWP?

We maintain our position that publiclinear transportation crossings shouldhave a higher acreage limit because theyfulfill a larger proportion of publicinterest factors and the governmentagencies that typically sponsor andbuild these projects have the resourcesnecessary to ensure that these projectshave minimal adverse effects on theaquatic environment. Publictransportation projects often requiredetailed planning processes todocument compliance with the NationalEnvironmental Policy Act, Section 404of the Clean Water Act, and otherapplicable laws. As a result, we havedecided that it is appropriate to imposea higher acreage limit for public lineartransportation projects in non-tidalwaters, excluding non-tidal wetlandsadjacent to tidal waters.

Public linear transportation crossingsare available for use by the generalpublic. Private linear transportationcrossings are restricted to use by anindividual or a specific group ofindividuals. The users of the crossingdetermine whether the crossing ispublic or private, not the builder of thetransportation crossing. Public roadsthat are constructed as a condition ofsubdivision approval and will be usedby the general public are consideredpublic linear transportation crossingsfor the purposes of this NWP.

Many commenters recommended a 2acre limit for public lineartransportation crossings. Onecommenter suggested a 3 acre limit.Two commenters said that the 1 acrelimit for public linear transportationcrossings is too low. Severalcommenters stated that this NWP

should have a 1⁄3 acre limit. Onecommenter said that the length of fillshould not exceed 200 feet and anothercommenter remarked that the 200 footrestriction for fills should be removedfrom the NWP. Two commentersrecommended replacing the 200 footlimit with a 500 foot limit. Onecommenter suggested a 500 linear footlimit for stream bed impacts.

We have determined that themaximum acreage limit for this NWPshould be 1⁄2 acre, to ensure that thisNWP only authorizes activities withminimal adverse effects on the aquaticenvironment. For public lineartransportation crossings constructed innon-tidal waters of the United States,excluding non-tidal wetlands adjacentto tidal waters, the acreage limit will be1⁄2 acre. For public linear transportationcrossings in tidal waters or non-tidalwetlands adjacent to tidal waters, theacreage limit will be 1⁄3 acre. For privatelinear transportation crossings, theacreage limit will be 1⁄3 acre. The 200foot limit for the length of fill in watersof the United States will be retained forpublic linear transportation crossingsconstructed in tidal waters or non-tidalwetlands adjacent to tidal waters and forprivate linear transportation crossings.

One commenter said that PCNsshould be required for all activitiesauthorized by this NWP. Severalcommenters recommended a PCNthreshold of 1⁄3 acre. Two commenterssuggested that PCNs should be requiredfor discharges of dredged or fill materialresulting in the loss of greater than 500linear feet of stream bed. Threecommenters said that notificationshould not be required for all dischargesinto special aquatic sites. Onecommenter requested clarificationconcerning when a PCN is required fordischarges into waters of the UnitedStates that are not special aquatic sites.

We have modified this NWP torequire notification for discharges ofdredged or fill material resulting in theloss of greater than 1⁄10 acre of waters ofthe United States. We are retaining thenotification requirement for alldischarges of dredged or fill materialinto special aquatic sites. If theproposed work does not involvedischarges of dredged or fill materialinto special aquatic sites, theprospective permittee is required tonotify the district engineer if theproposed work will result in the loss ofgreater than 1⁄10 acre of waters of theUnited States.

One commenter asked if the acreagelimits for this NWP apply only topermanent losses of waters of theUnited States. Three commentersrequested clarification whether the

requirement for a mitigation proposal inparagraph (c) applies to the mitigationprocess (i.e., avoidance, minimization,and compensation) or only tocompensatory mitigation. Onecommenter said that there should be anacreage threshold for the requirementsof paragraph (c). One commenter saidthat mitigation should be required forall impacts to waters of the UnitedStates and another commenter statedthat mitigation should be required fordischarges resulting in the loss ofgreater than 1 acre of waters of theUnited States.

In accordance with the definition ofthe term ‘‘loss of waters of the UnitedStates’’ in the ‘‘Definitions’’ section ofthe NWPs, the acreage limit applies onlyto permanent losses of waters of theUnited States. We have inserted theword ‘‘compensatory’’ before the phraseword ‘‘mitigation proposal’’ inparagraph (c) to clarify that theprospective permittee must submit acompensatory mitigation proposal withthe PCN. The requirement for acompensatory mitigation proposalapplies only to those activities thatrequire notification. District engineerscan determine, on a case-by-case basis,that compensatory mitigation is notnecessary to offset losses of waters ofthe United States because the work,without compensatory mitigation, willresult in minimal adverse effects on theaquatic environment. We have alsoinserted the phrase ‘‘of waters of theUnited States’’ after the term‘‘temporary losses’’ in paragraph (c) toclarify that the required statement mustaddress temporary losses of waters ofthe United States.

One commenter suggested thatnotification should be required if NWP14 was previously used to authorize aroad crossing on the same waterbody.Another commenter objected toconsidering each crossing of a separatewaterbody as a distinct single andcomplete project. One commenter saidthat the second sentence of paragraph(h) should be deleted because itcontradicts the definition of the term‘‘single and complete project.’’

Since notification is required for alldischarges of dredged or fill materialinto special aquatic sites and dischargesresulting in the loss of greater than 1⁄10

acre of waters of the United States, mostactivities authorized by this NWP willrequire notification to the districtengineer. If NWP 14 is used more thanonce by different project proponents tocross a single waterbody, the districtengineer will assess the adverse effectson the aquatic environment anddetermine if those adverse effects areminimal. The second sentence of



paragraph (h) does not contradict theCorps definition of the term ‘‘single andcomplete project’’ at 33 CFR 330.2(i).

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. For linear transportationcrossings resulting in discharges ofdredged or fill material into waters ofthe United States within 100-yearfloodplains, General Condition 26requires the permittee to notify thedistrict engineer and demonstrate thatthe proposed work complies with FEMAor FEMA-approved local floodplainconstruction requirements. NWP 14 isreissued with the modificationsdiscussed above.

27. Stream and Wetland RestorationActivities: In the July 21, 1999, FederalRegister notice, we proposed to modifyNWP 27 to authorize the restoration oftidal waters and the restoration andenhancement of non-tidal streams andnon-tidal open waters.

One commenter supported theexpansion of this NWP to tidal waters.This commenter requested clarificationregarding which restoration activitiescan occur in Section 10 waters and tidalwaters. One commenter said that thetitle of this NWP should be changed toinclude creation activities. Thiscommenter asked for clarificationconcerning the types of wetlandcreation activities that are authorized bythis NWP. This commenter said that aCorps permit should be required only ifthe wetland creation activity includesconnecting the wetland creation site towaters of the United States. Onecommenter said that restorationactivities should be limited to restoringareas to their historic state and anothercommenter stated that NWP 27 shouldauthorize activities that are part of awatershed improvement plan. Onecommenter said that this NWP shouldhave enforceable conditions andpermittees should be required to obtainrestoration agreements that areapproved by the Corps and the resourceagencies. One commenter recommendeda 2 acre limit for this NWP. Anothercommenter recommended that theCorps add a note to this NWP that issimilar to the note at the end of NWP

39, which describes open waters of theUnited States.

This NWP authorizes the restorationof former tidal waters, the enhancementof degraded tidal wetlands, and thecreation of tidal wetlands. We do notagree that it is necessary to include theword ‘‘creation’’ in the title of this NWP,since it is clearly indicated in the firstparagraph of this NWP that wetlandcreation activities are authorized. ThisNWP provides authorization for allwetland creation activities, providedthose activities comply with the termsand conditions of this NWP. Wetlandcreation activities that do not involvedischarges of dredged or fill materialinto waters of the United States do notrequire a Section 404 permit. We do notagree that this NWP should be limitedto restoring wetlands to their historicstate, because restoration projects resultin net improvements to the aquaticenvironment, even though they may notrestore former waters to their historicstate. This NWP can authorize therestoration, enhancement, and creationof aquatic habitats that are part of awatershed improvement plan.

We do not agree that it is necessaryto execute restoration agreements for allactivities authorized by this NWP. Sucha provision would likely to discouragelandowners from conducting theseactivities. Since this NWP authorizesactivities that benefit the aquaticenvironment, an acreage limit would becounterproductive. The activitiesauthorized by this NWP either requirenotification to the district engineer orinvolve oversight by other Federalagencies, which will ensure that onlyactivities that benefit the aquaticenvironment are authorized by thisNWP. A definition of the term ‘‘openwater’’ is included in the ‘‘Definitions’’section of the NWPs. Therefore, it is notnecessary to include a note in this NWP.

One commenter said that this NWPshould authorize the restoration andenhancement of tidal wetlands andstreams. Another commenter stated thatNWP 27 should authorize restoration,enhancement, and creation activities indrainage ditches, because it is difficultto distinguish between drainage ditchesand streams in the mid-West. Severalcommenters believe that significantstream destruction can be authorized bythis NWP and suggested imposing alimit of 250 linear feet on streamimpacts.

This NWP authorizes the restorationand enhancement of tidal wetlands, butit does not authorize the restoration oftidal streams, particularly the openwater areas of tidal streams. However,the restoration and enhancement ofriparian zones next to tidal streams is

authorized by this NWP. The restorationof tidal streams is not authorized byNWP 27 because changes in tidalaquatic habitats may result in more thanminimal adverse effects on the aquaticenvironment. The restoration of tidalstreams can be authorized by individualpermits or regional general permits.This NWP authorizes the restorationand enhancement of non-tidal streamsthat were channelized to create drainageditches, including the restoration andenhancement of riparian zones next tothose streams. Since the activitiesauthorized by NWP 27 benefit theaquatic environment and most activitiesrequire notification or oversight by otheragencies, we do not agree that it isnecessary to impose a linear limit onstream impacts.

One commenter said that this NWPshould authorize only those activitiesthat are conducted or sponsored byFederal or state agencies. Twocommenters support the use of thisNWP to authorize the restoration ofaquatic habitats on public or privateland. One commenter stated that therecommendation in paragraph (c) toplant native species on the project siteshould be modified to require thepermittee to use local sources of plantmaterials.

Limiting this NWP to activitiesconducted or sponsored by Federal orstate agencies would preclude the use ofan NWP for many aquatic habitatrestoration, enhancement, and creationactivities conducted by privateindividuals that benefit the aquaticenvironment. We do not agree thatpermittees should be required to uselocal sources of plant materials.

One commenter objected to theprovision that allows the relocation ofaquatic habitats on the project site,stating that this provision is contrary tothe avoidance and minimizationrequirements of the NWPs. Anothercommenter said that the relocation ofaquatic habitats should be authorizedonly when it is ecologically preferablethan avoidance and minimization. Thiscommenter also requested that the NWPcontain a provision that requires therelocated waters to be equal or greaterin acreage than the waters of the UnitedStates filled as a result of the authorizedactivity. One commenter indicated thatthe relocation of aquatic habitats on theproject site should not be authorized bythis NWP.

Allowing the relocation of non-tidalwaters on the project site is not contraryto General Condition 19 because NWP27 requires authorized activities toresult in net gains in aquatic resourcefunctions and values. We are retaining



the provision that allows the relocationof non-tidal waters on the project site.

One commenter opposed the use ofrip rap for activities authorized by thisNWP and another commenter supportedthe use of rip rap. One commenter saidthat the removal of accumulatedsediments requires a Corps permit onlywhen the work is conducted innavigable waters (i.e., Section 10waters). Another commenter asked if theremoval of accumulated sediments isauthorized only once or if this activitycan occur for the duration of the projectto maintain the restored areas. Onecommenter stated that this NWP shouldalso authorize the management of therestored, created, or enhanced waters.

Rip rap provides habitat for manyspecies of aquatic organisms and its useshould be authorized by this NWP,provided the authorized work results innet gains in aquatic resource functionsand values. The Corps regulatoryauthority regarding excavation activitiesin waters of the United States isaddressed in a previous section of thisFederal Register notice. The removal ofaccumulated sediments is authorized bythis NWP as often as necessary tomaintain the restored areas, althoughthe permittee should endeavor to locatethe sediment source and try to stabilizethat area to reduce inputs of sedimentin the restored waters. This NWPauthorizes activities necessary tomaintain the restored, enhanced, orcreated aquatic habitats.

One commenter asked for a definitionof the term ‘‘small’’ water controlstructure. This commenterrecommended defining a small watercontrol structure as a structure thatimpounds water to a maximum depth of2.5 feet or less. This commenter alsorequested clarification concerning theextent of mechanized landclearingactivities that are authorized by thisNWP to remove undesirable vegetation.This commenter said that mechanizedlandclearing should be limited toestablishing or maintaining nativeherbaceous wetland plant species andselected plant species that provide foodfor wildlife. This commenterrecommended limiting mechanizedlandclearing to vegetation that has adiameter at breast height of 4 inches orless.

We do not believe that it is necessaryto specify the dimensions of small watercontrol structures that are authorized bythis NWP. For those activities thatrequire notification, the district engineerwill determine whether the watercontrol structure is authorized by thisNWP. This NWP authorizes mechanizedlandclearing to remove undesirablevegetation and we recommend replacing

the removed vegetation with nativeplant species. We do not agree thatmechanized landclearing activitiesauthorized by this NWP should belimited to vegetated that has a diameterat breast height of 4 inches or less,because the proposed work may requirethe removal of larger undesirable trees.

One commenter supported theprovision that the conversion of naturalwetlands to another aquatic use is notauthorized by NWP 27. Twocommenters stated that the constructionof water impoundments should not beauthorized by this NWP. Onecommenter opposed the prohibitionagainst the impoundment of streams orthe conversion of forested wetlands toconstruct waterfowl impoundments,because this commenter believes thatthese activities benefit the aquaticenvironment. This commenter supportsthe term of NWP 27 that prohibits thechannelization of streams.

We maintain our position that thisNWP should not authorize theimpoundment of streams or theconversion of forested wetlands toconstruct waterfowl impoundments.These activities often result in morethan minimal adverse effects to theaquatic environment by destroying ordegrading habitat that is utilized bymany other species of wildlife.However, open water impoundmentscan be created from uplands on theproject site or by converting a non-tidalemergent or scrub-shrub wetland,provided that wetland type is recreatedelsewhere on the project site and thereare net gains in aquatic resourcefunctions and values on the project site.

One commenter stated that allreversion activities on agricultural landsshould be authorized by NWP 40 and allreversion activities on reclaimed surfacecoal mined lands should be authorizedby NWP 21. Another commenterrequested clarification of the provisionthat authorizes the reversion ofwetlands restored, created, or enhancedon prior converted cropland. Thiscommenter also suggested that a fiveyear time limit for reversions shouldapply to agreements with the U.S. FWSor NRCS that do not have time limits.One commenter stated that theparagraph of NWP 27 that addressreversion activities implies that theCorps is asserting jurisdiction overwetlands that were created on priorconverted cropland, even though aCorps permit was not required to restorewetlands on that cropland. Thiscommenter said that the Corps cannotconsider all created wetlands to bejurisdictional wetlands.

It is more appropriate to authorizereversion activities by NWP 27, since

this NWP was likely to be used toauthorize the initial wetland restoration,enhancement, or creation activity. ThisNWP authorizes the reversion ofwetlands that were restored, enhanced,or created on prior converted croplandthat has not been abandoned, becauseprior converted croplands are not watersof the United States and a Section 404permit is not required for discharges ofdredged or fill material into priorconverted cropland. We do not agreethat it is necessary to impose a five yearlimit for reversions on U.S. FWS orNRCS agreements that do not have timelimits. A Section 404 permit is notrequired to revert wetlands that are notconsidered waters of the United States.

One commenter supported the note inthe proposed modification of NWP 27,which states that compensatorymitigation is not required for activitiesauthorized by this NWP, provided thereare net increases in aquatic resourcefunctions and values in the project area.Two commenters said that this NWPshould be used to authorize allcompensatory mitigation projects. Onecommenter supports the use of NWP 27to authorize the establishment ofmitigation banks. Many commentersobjected to the use of NWP 27 toauthorize discharges of dredged or fillmaterial into waters of the United Statesto construct mitigation banks. Severalcommenters oppose this provision,stating that mitigation banks should besubject to public comment because theyaffect local development patterns andland prices. The Corps receivedcomments that it appeared that NWP 27could be used to authorized mitigationbanks that may not have been approvedby an Interagency Mitigation BankingReview Team. That was not our intent.NWP 27 can only be used to authorizeimpacts at a mitigation bank that hasbeen approved under the NationalInteragency Federal Mitigation BankingGuidance.

We maintain our position that NWP27 may be used to authorizecompensatory mitigation projects,including mitigation banks, that involveactivities in waters of the United States,provided the work results in a netincrease in aquatic resource functionsand values in the project area. The useof NWP 27 to authorize mitigation banksdoes not override the Federal guidancefor the establishment, use, andoperation of mitigation banks that wasissued in 1995. We do not agree that itis necessary to require individualpermits for all mitigation banks, becausethey benefit the aquatic environment.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure that



the adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which requiresnotification for activities in designatedcritical resource waters. NWP 27 isreissued with the modificationsdiscussed above.

39. Residential, Commercial, andInstitutional Developments: In the July21, 1999, Federal Register notice, weproposed to issue an NWP to authorizedischarges of dredged or fill materialinto non-tidal waters of the UnitedStates, excluding non-tidal wetlandsadjacent to tidal waters, for theconstruction of building pads, buildingfoundations, and attendant features forresidential, commercial, andinstitutional developments.

Many commenters opposed theissuance of the proposed NWP. Twocommenters said that this NWP shouldauthorize discharges of dredged or fillmaterial into non-tidal wetlands that areadjacent to tidal waters.

We believe that the scope of watersfor this NWP is appropriate to ensurethat NWP 39 authorizes only thoseresidential, commercial, andinstitutional development activities thathave minimal adverse effects on theaquatic environment.

One commenter said that this NWPshould authorize only single andcomplete projects that consist ofbuildings and attached or integralattendant features. This commenterindicated that this NWP should notauthorize the expansion of existingdevelopments. Several commentersstated that golf courses should not beauthorized by this NWP because theyare not necessary for residentialdevelopments. Another commenter saidthat this NWP should authorizedischarges of dredged or fill materialinto waters of the United States for theconstruction of ski areas, since they arenot more environmentally harmful thangolf courses.

We maintain our position that thisNWP should authorize building padsand attendant features for residential,commercial, and institutionaldevelopment activities. Attendantfeatures should not be limited tostructures or fills that are attached tobuildings. This NWP can be used toauthorize the expansion of existingdevelopments, provided the adverseeffects on the aquatic environment areminimal, individually and

cumulatively. Many residentialsubdivisions are constructed with golfcourses as important attendant features.These types of residential communitiesare marketed as golf coursecommunities. We do not agree that skiareas are attendant features ofresidential communities in the samemanner as golf courses. Ski resorts areusually constructed first, withresidences constructed at a later time.

A large number of commenterssupported the indexed acreage limit forNWP 39 that was proposed in the July21, 1999, Federal Register notice. Manycommenters opposed the proposedindexed acreage limit. Two commentersobjected to the indexed acreage limit,stating that minimal impactdeterminations are based on the sizeand quality of the aquatic resources, notthe size of the parcel owned by theapplicant. A commenter remarked thatthe indexed acreage limit will encouragedevelopers to build larger projects toqualify for higher acreage limits. Threecommenters said that an indexedacreage limit based on project size willnot ensure minimal adverse effects onthe aquatic environment. Numerouscommenters stated that the maximum 3acre limit is too high. Severalcommenters said that the maximumindexed acreage limit should be 1 acre.Another commenter suggested amaximum indexed acreage limit of 10acres. Several commentersrecommended that the Corps impose asimple 5 acre limit for this NWP. Anumber of commenters suggested asimple 10 acre limit for discharges ofdredged or fill material into ephemeralstreams.

To ensure that this NWP authorizesonly activities with minimal adverseeffects on the aquatic environment, wehave decided to impose a simple 1⁄2 acrelimit on NWP 39. We have not adoptedthe indexed acreage limit, which willmake NWP 39 easier to implement forboth the Corps and the regulated public.

Various commenters suggested 100,200, 250, and 500 linear foot limitationsfor stream impacts. One commenter saidthat NWP 39 should have a limit forperennial and intermittent stream bedimpacts.

We have added a 300 linear foot limitfor stream bed impacts (i.e., filling andexcavating perennial and intermittentstream bed) to this NWP at paragraph(b). Division engineers can regionallycondition this NWP to decrease the 300linear foot limit for filling andexcavating stream bed.

Several commenters suggested a PCNthreshold of 1⁄3 acre. Anothercommenter said that PCNs should berequired for all NWP 39 activities. One

commenter stated that notificationshould be required for dischargesresulting in the loss of greater than 500linear feet of stream bed. Onecommenter said that a PCN should berequired for discharges of dredged or fillmaterial that result in the permanentloss of open waters, not all dischargesinto open waters. A commenterrequested clarification of the PCNthresholds of NWP 39. One commentersaid that notification should not berequired for discharges into intermittentstreams. One commenter recommendedremoving the phrase ‘‘includingwetlands’’ at the end of paragraph (c) ofthe proposed NWP.

To ensure that district engineers willhave the opportunity to review allactivities that could result in more thanminimal adverse effects on the aquaticenvironment, we have reduced the PCNthreshold to 1⁄10 acre. We are retainingthe requirement for notification for alldischarges into open waters. The latternotification requirement applies to bothtemporary and permanent losses of openwaters. Notification is not required forall activities authorized by NWP 39.Discharges of dredged or fill materialthat result in the loss of 1⁄10 acre or lessof non-tidal wetlands do not require thesubmission of a PCN to the districtengineer, although a post-constructionnotification is required (see paragraph(i)). We have removed the phrase‘‘including wetlands’’ at the end ofparagraph (d) (paragraph (c) of theproposed NWP).

One commenter said that paragraph(d) of the proposed NWP 39 (nowdesignated as paragraph (e)) should notimply that this NWP can be used morethan once for the same activity.

Paragraph (e) requires the discharge ofdredged or fill material into waters ofthe United States for the residential,commercial, or institutionaldevelopment activity to be for a singleand complete project. NWP 39 can beused more than once for a single andcomplete project, provided thecombined losses of waters of the UnitedStates from all of the phases of thatsingle and complete project do notexceed the 1⁄2 acre or the 300 linear footlimits for NWP 39.

One commenter expressed support forthe statement of avoidance andminimization that is required byparagraph (e) of the proposed NWP 39(now designated as paragraph (f)). Twocommenters stated that the requirementfor a written avoidance andminimization statement is similar to analternatives analysis and would be cost-prohibitive for many mid-sizedactivities. Another commenter opposedthis requirement because the NWP



regulations already require avoidanceand minimization.

We are retaining the requirement forthe submission of a written statementexplaining how avoidance andminimization of losses of waters of theUnited States was achieved on theproject site. This statement shouldconsist of a brief explanation thatdiscusses how the activity was plannedto avoid and minimize losses of watersof the United States on-site to themaximum extent practicable. Anexhaustive analysis is not required. Therequired statement will documentcompliance with General Condition 19and will help expedite reviews of PCNsby district engineers.

One commenter supported themitigation requirements for NWP 39.Two commenters stated thatcompensatory mitigation should berequired for all activities authorized bythis NWP. Another commenter said thatcompensatory mitigation should berequired for activities that requirenotification. Two commenters statedthat the provision of paragraph (e) of theproposed NWP 39 (now designated asparagraph (f)) that provides theprospective permittee with theopportunity to submit justificationexplaining why compensatorymitigation is unnecessary should bedeleted because it is inconsistent withthe compensatory mitigationrequirements of the other NWPs. Onecommenter recommended including areference to the mitigation provisions inGeneral Conditions 13 and 19 inparagraph (e) of the proposed NWP 39.Another commenter said that allprospective permittees should berequired to submit detailed mitigationplans with the PCN.

As discussed elsewhere in thisFederal Register notice, compensatorymitigation will normally be required forthose activities that require notificationto the district engineer, to ensure thatthe authorized work results in minimaladverse effects on the aquaticenvironment. If the proposed work willresult in minimal adverse effects on theaquatic environment withoutcompensatory mitigation, then thedistrict engineer can issue an NWPverification without special conditionsthat require compensatory mitigation.Allowing the prospective permittee tosubmit a statement with the PCN toassert that compensatory mitigation isunnecessary to ensure minimal adverseeffects is not contrary to thecompensatory mitigation requirementsof the NWPs. District engineers candetermine that compensatory mitigationis necessary to ensure that the adverseeffects on the aquatic environment are

minimal, even though the prospectivepermittee may believe thatcompensatory mitigation should not berequired. We have added text toparagraph (f) that refers to GeneralCondition 19, which contains themitigation requirements for the NWPs.As discussed in the section addressingthe NWP general conditions, we havemoved the compensatory mitigationinformation from paragraph (g) ofGeneral Condition 13 to GeneralCondition 19. We maintain our positionthat the prospective permittee cansubmit either conceptual or detailedcompensatory mitigation plans with thePCN. Detailed compensatory mitigationplans can be required as specialconditions of the NWP authorization.

One commenter requestedclarification of the phrase ‘‘minimaldegradation of water quality,’’ whichappears in paragraph (g) of the proposedNWP 39, because it could be subject tobroad interpretation.

The requirements of paragraph (g)(now designated as paragraph (h)) areintended to reinforce the fact that theNWPs can authorize only activities withminimal adverse effects on the aquaticenvironment, by focusing on twoimportant aspects of the aquaticenvironment that can be altered by NWPactivities, namely water quality andstream flows.

Two commenters object to therequirements of paragraph (h) of theproposed NWP 39 (now designated asparagraph (i)) because it infers thatmitigation is required for activities thatdo not require notification. Anothercommenter identified an inconsistencyin this paragraph, because it contains areference to stream impacts and thiscommenter noted that NWP 39 requiresnotification for all discharges of dredgedor fill material into streams.

Compensatory mitigation is notrequired for those NWP activities thatdo not require notification to the districtengineer. However, compensatorymitigation to offset losses of waters ofthe United States may be required bystate or local permits, which should bereported to the Corps through the post-construction notification required byparagraph (i). We have removed thereferences to stream bed impacts fromparagraph (i), since the NWP requiresnotification for all discharges into openwaters.

One commenter opposed theprovisions of paragraph (i) of theproposed NWP 39 (now designated asparagraph (j)), which requires thepermittee to establish and maintain, tothe maximum extent practicable,vegetated buffers next to open orstreams within the project area. Another

commenter said that Federal and statelands should be required to have amanagement plan instead of deedrestrictions for vegetated buffers.

The requirements for vegetatedbuffers next to open waters arediscussed in detail in a previous sectionof this Federal Register notice. There isflexibility in the requirements ofparagraph (j). If there are open waters orstreams within the project area and it isimpractical for the project proponent toestablish and maintain vegetated buffersnext to those waters, then thosevegetated buffers are not required.However, other types of compensatorymitigation may be required to ensurethat the work results in minimal adverseeffects on the aquatic environment.District engineers will determine, on acase-by-case basis, when it is practicableto establish and maintain vegetatedbuffers and the appropriate width ofthose vegetated buffers.

Several commenters opposedparagraph (j) of the proposed NWP 39(now designated as paragraph (k)),which prohibits stream channelizationor stream relocation downstream of thepoint on the stream where the averageannual flow is 1 cubic foot per second(cfs). One commenter supported thisprovision. Some of these commentersindicated that this provision will bedifficult to implement in areas withmany ephemeral streams. Othercommenters stated that this requirementis difficult to implement because it willbe expensive and time consuming todetermine where the 1 cfs point occurs.One commenter suggested that streamchannelization or relocation activitiesshould be limited to ephemeral streamsinstead of prohibiting these activitiesdownstream of the 1 cfs point. Anothercommenter recommended replacing the1 cfs criterion with either a prohibitionagainst channelizing perennial streamsor utilizing drainage area instead ofaverage annual flow. This commentersuggested applying the prohibition tostreams with a drainage area greaterthan 250 acres.

We discussed the identification of the1 cfs point on streams in a previoussection of this Federal Register notice.Drainage area, based on regional criteria,can be used to approximate the locationof the 1 cfs point on a stream. Webelieve that the prohibition in paragraph(k) is necessary to ensure that NWP 39authorizes only activities with minimaladverse effects on the aquaticenvironment. This provision isconsistent with the increased emphasiswe are placing on the protection of openand flowing waters.

Several commenters objected toallowing project proponents to construct



their activities in phases. Numerouscommenters said that NWP 39 shouldnot be used with NWP 14 because it willauthorize activities that exceed theacreage limit of NWP 39.

District engineers will review PCNsfor phased construction projects todetermine if those activities complywith the terms and conditions of theNWPs. District engineers will alsoreview the PCNs for these activities toensure that they result in minimaladverse effects on the aquaticenvironment. General Condition 15states that when more than one NWP isused to authorize a single and completeproject, that single and complete projectis subject to the highest specifiedacreage limit of those NWPs. Therefore,when NWP 14 is combined with NWP39 to authorize a single and completeproject, the total project acreage limitwill be 1⁄2 acre.

One commenter asked how a projectproponent would know if NWP 40, as itwas issued in 1996, was used toconstruct a farm building that was morethan 500 feet from a waterbody, if thatland was sold to build a residential,commercial, or institutionaldevelopment on the land. Onecommenter objected to the restrictionsrelating the use of NWP 39 and NWP 40on the same parcel, but anothercommenter supported these restrictions.

The limitations for the use of NWPs39 and 40 on the same parcel apply onlyto those activities authorized by theNWPs issued today, because theprevious version of NWP 40 authorizeddischarges of dredged or fill materialinto farmed wetlands for theconstruction of farm buildings. We areretaining the provisions limiting the useof NWPs 39 and 40 on the same parcel.

Several commenters objected to thesubdivision provision in NWP 39,stating that it will allow theauthorization of activities with morethan minimal adverse effects on theaquatic environment. One commenterrequested clarification whether thesubdivision provision applies to all ofthe terms of NWP 39 or whether it onlyaddresses the acreage limits for eachparcel within the subdivision. Thiscommenter also indicated that if thedistrict engineer grants an exemptionpursuant to the subdivision provision,then the landowner can use NWP 26 toauthorize the development activity.Another commenter said that only NWP29 should be used to authorize activitieson individual lots within an exemptedsubdivision.

The notification requirements of thesubdivision provision will ensure thatNWP 39 will authorize only activitieswith minimal adverse effects on the

aquatic environment. District engineerscan assert discretionary authority if theproposed work will result in more thanminimal adverse effects on the aquaticenvironment. The subdivision provisionaddresses only the acreage limits for thesubdivision, or the individual parcelswithin that subdivision if an exemptionhas been granted by the districtengineer. The subdivision provisiondoes not keep NWP 26 in effect for thoseactivities that have been granted anexemption by the district engineer. If anexemption has been granted, theactivities on individual parcels mustcomply with the terms and conditionsof NWP 39. We do not agree thatactivities on individual lots should beeligible only for NWP 29 if anexemption has been granted, becauseother types of buildings may beconstructed on these lots, with minimaladverse effects on the aquaticenvironment.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. For NWP 39 activities resultingin discharges of dredged or fill materialinto waters of the United States within100-year floodplains, General Condition26 requires the permittee to notify thedistrict engineer and demonstrate thatthe proposed work complies with FEMAor FEMA-approved local floodplainconstruction requirements.Furthermore, General Condition 26prohibits any above-grade fill underNWP 39 within regulatory floodwaysabove the headwaters. NWP 39 is issuedwith the modifications discussed above.

40. Agricultural Activities: In the July21, 1999, Federal Register notice, weproposed to modify NWP 40 toauthorize discharges of dredged or fillmaterial into non-tidal waters of theUnited States, excluding non-tidalwetlands adjacent to tidal waters, toimprove agricultural production.

A large number of commentersexpressed opposition to the proposedmodification of this NWP. Manycommenters said that the use of thisNWP will result in substantial losses ofwetlands and some commenters statedthat the activities authorized by thisNWP will result in more than minimaladverse effects on the aquatic

environment. Numerous commenterssaid that the proposed modification ofNWP 40 violates the Clean Water Actbecause it authorizes discharges ofdredged or fill material that result in theloss of agricultural wetlands. Somecommenters stated that the proposedmodification is unnecessary because on-going farming activities are exempt fromSection 404 permit requirements. Onecommenter said that the proposedmodification is contrary to other Federalprograms, such as the Wetlands ReserveProgram and the Conservation ReserveProgram. One commenter indicated thatthe text of this NWP should referencethe wetland conservation provisions ofthe ‘‘Food Security Act of 1985, asamended.’’

NRCS will review those activitiesauthorized by paragraph (a) and districtengineers will review most activitiesauthorized by paragraphs (b), (c), and(d) to ensure that the activitiesauthorized by this NWP do not result inmore than minimal adverse effects onthe aquatic environment. The use of thisNWP will not result in substantial lossesof wetlands. Compensatory mitigationwill be required for most activitiesauthorized by this NWP to offset lossesof waters of the United States andensure that the authorized work resultsin minimal adverse effects on theaquatic environment.

The modification of NWP 40 does notviolate the Clean Water Act, because theClean Water Act does not prohibitdischarges of dredged or fill materialinto waters of the United States toincrease agricultural production. TheClean Water Act merely requires apermit for such activities. Theconversion of wetlands to increaseagricultural production is not exemptfrom Section 404 permit requirements.The proposed modification of NWP 40is not contrary to the Wetlands ReserveProgram or the Conservation ReserveProgram. We have modified the text ofthe NWP to refer to the ‘‘Food SecurityAct of 1985, as amended.’’

One commenter said that theproposed modification of NWP 40should authorize activities in non-tidalwetlands adjacent to tidal waters toincrease the utility of this NWP incoastal areas. Several commenters statedthat this NWP should be restricted tofrequently cropped wetlands. Manycommenters stated that this NWPshould not authorize activities inplayas, prairie potholes, and vernalpools. Three commenters indicated thatthis NWP should not authorize activitieswithin 100 feet of playas, prairiepotholes, and vernal pools. Anothercommenter said that this NWP willauthorize the destruction of streams.



We do not agree that this NWP shouldauthorize discharges of dredged or fillmaterial into non-tidal wetlandsadjacent to tidal waters. In addition, thisNWP should not be restricted tofrequently cropped wetlands. Divisionengineers can regionally conditionparagraph (b) or (c) of this NWP toprohibit or limit its use in playas,prairie potholes, and vernal pools. ThisNWP does not authorize the destructionof streams. The only stream impactsauthorized by this NWP are dischargesof dredged or fill material into waters ofthe United States to relocate drainageditches constructed in non-tidalstreams.

One commenter stated that a separateNWP should be developed for theinstallation of drainage ditches ordrainage tile. Another commenter askedif this NWP authorizes silvicultural orranching activities.

This NWP can be used to authorizedischarges of dredged or fill materialinto non-tidal wetlands to constructdrainage ditches or install drainage tile,provided the work meets the terms andconditions of this NWP and does notresult in the loss of greater than 1⁄2 acreof non-tidal waters of the United States.This NWP authorizes silvicultural andranching activities, because they areconsidered agricultural activities.

One commenter opposed theproposed indexed acreage limit for thisNWP and several commenterssupported the use of an indexed acreagelimit. One commenter said that theactivities authorized by paragraphs (c)and (d) should be included in theindexed acreage limit for this NWP.Two commenters supported themaximum 2 acre limit. Manycommenters said that this NWP shouldhave a 1⁄4 acre limit. Other commenterssuggested 1⁄10, 1⁄3, and 1 acre limits. Onecommenter supported the 1 acre limitfor discharges of dredged or fill materialinto playas, prairie potholes, and vernalpools. Other commenters said that theacreage limit for discharges into thesetypes of waters should be lower, andone commenter recommended a 1⁄3 acrelimit. Several commenters stated thatthis NWP should have a linear foot limitfor stream impacts. Some commenterssuggested a 250 linear foot limit andanother commenter recommended a 500linear foot limit.

Based upon our review of thecomments received in response to theJuly 21, 1999, Federal Register notice,we have established a 1⁄2 acre limit fordischarges of dredged or fill materialinto non-tidal wetlands (includingplayas, prairie potholes, and vernalpools) to increase agriculturalproduction. This acreage limit will

ensure that the activities authorized bythis NWP result in minimal adverseeffects on the aquatic environment. Wehave withdrawn the indexed acreagelimit for discharges of dredged or fillmaterial into playas, prairie potholes,and vernal pools to increase agriculturalproduction. We have added a 300 linearfoot limit for the relocation of existingdrainage ditches constructed in non-tidal streams.

One commenter supported the use offarm tracts to identify single andcomplete projects under NWP 40. Thiscommenter also said that using farmtracts to define single and completeprojects for this NWP is problematic,especially when a farmer leases land toother farms. This commenter stated thatlandowners would need to request tractnumbers and boundary determinationsfor certain areas, such as range land,where tract numbers or boundarydeterminations have not yet beendesignated. Several commentersindicated that the acreage limit for thisNWP should be based on farms, notfarm tracts. Some of these commenterssaid that basing the acreage limit onfarm tracts will allow more than one useof this NWP for a single agriculturaloperation. One commenter remarkedthat the use farm tracts in this NWPdoes not satisfy the definition ofindependent utility because the majorityof farm tracts are not economically self-supporting.

We maintain our position that singleand complete projects for this NWPshould be based on farm tracts, notfarms. Utilizing farm tracts will makethis NWP easier to implement for theregulated public, NRCS personnel, andCorps personnel. In addition, the use offarm tracts will avoid the difficultiesassociated with the leasing of farmtracts. Data from the Farm ServiceAgency shows that there is an averageof 1.5 farm tracts per farm nationwide.Therefore, the use of farm tracts todetermine single and complete projectswill not result in substantial losses ofwetlands. Since NRCS supports the useof farm tracts for this NWP and thenational average is 1.5 farm tracts perfarm, we cannot agree with thecomment that the majority of farm tractsare not economically self-supporting.

Many commenters objected to theterms of paragraph (a) of the proposedmodification of NWP 40, stating that theCorps, not NRCS, should review theseactivities and determine if they can beauthorized by NWP 40. One commenteropposed paragraph (a), stating that itdoes not provide the district engineerwith the opportunity to exercisediscretionary authority. Twocommenters said that the Clean Water

Act does not allow the Corps to delegateportions of the Section 404 permitprogram to NRCS. One of thesecommenters also stated that thereshould be a Memorandum of Agreementbetween the Corps and NRCS to trackthe use of this NWP. Two commenterssaid that NRCS does not have theauthority under the Clean Water Act toevaluate the indirect or cumulativeimpacts of activities authorized by thisNWP. One commenter remarked that theprovisions of paragraph (a) will increasethe workload of DistrictConservationists at local NRCS offices.Many commenters objected to paragraph(a) because division engineers cannotimpose regional conditions on thisprovision of NWP 40.

These terms and conditions of NWP40, in conjunction with therequirements of NRCS, will ensure thatthe activities authorized by paragraph(a) will result in minimal adverse effectson the aquatic environment, withoutoversight by the Corps. The provisionsof paragraph (a) do not delegate theSection 404 program to NRCS. Thereporting requirements of subparagraph(a)(5) will allow district engineers tomonitor the use of this NWP and assesscumulative adverse effects. Thecomments we received from NRCS donot indicate that the workload increaseimposed on District Conservationistswill be unmanageable. To assist in theeffective implementation of paragraph(a), division engineers cannot imposeregional conditions on this term of NWP40.

One commenter supported therequirement for USDA programparticipants to be in compliance withthe minimal effects criteria of NRCS.One commenter said that subparagraph(a)(1) of NWP 40 should include theterms ‘‘categorical minimal effectsexemption, minimal effect exemptions,and mitigation exemptions,’’ which aremore accurate than the proposedlanguage. This commenterrecommended that the phrase ‘‘ifrequired’’ should be included insubparagraph (a)(5) of the proposedmodification of NWP 40 because not allactivities will require compensatorymitigation. One commenter said thatmitigation requirements should becoordinated between NRCS and theCorps to ensure that the mitigationrequirements of the Food Security Actand the Clean Water Act are satisfied.

We have modified the text ofsubparagraph (a)(1) to make it consistentwith the terminology utilized in NRCSregulations. We also concur with thethird comment in the previousparagraph, and have revisedsubparagraph (a)(4) accordingly. For



activities authorized by paragraph (a),the Corps will accept the compensatorymitigation requirements of NRCS.

One commenter suggested that NRCSshould determine if proposed activitiesauthorized by paragraph (a) will resultin unacceptable impact to 100-yearfloodplains because NRCS mustconsider impacts to flood storage andflood flowage when determiningwhether an activity qualifies for a USDAexemption. This commenter also saidthat if proposed General Condition 27 isnot modified to allow NRCS todetermine the impacts to 100-yearfloodplains, then the text of NWP 40should be revised to include theprohibitions imposed by this generalcondition.

Since we have modified the proposedGeneral Condition 27 (now designatedas General Condition 26) for fills within100-year floodplains, we have addedparagraph (e) to NWP 40. Thisparagraph states that the permittee mustcomply with General Condition 26 if theNWP 40 activity is in a 100-yearfloodplain identified by FEMA’s FloodInsurance Rate Maps or FEMA-approvedlocal floodplain maps. We believe thatit is adequate to refer the permittee toGeneral Condition 26, instead ofincorporating the provisions of thisgeneral condition into the text of NWP40. The Corps, as available, will identifythe limits of headwaters for thepurposes of General Condition 26.

One commenter said that the PCNthreshold for this NWP should be 1⁄3acre and another commenter stated thatthe PCN threshold should be 1⁄10 acre.A commenter said that the prospectivepermittee should not be required todisclose past use of NWP 40 with aNWP 40 PCN for additional dischargesof dredged or fill material into waters ofthe United States on the property.Another commenter said that amitigation plan should be submittedwith all NWP 40 PCNs. One commentersaid that the phrase ‘‘if required’’ shouldbe included in paragraph (b)(5) becausenot all activities authorized by NWP 40will require compensatory mitigation.Another commenter objected toparagraph (b) because it contains noprovisions for the Corps to verifywetland determinations.

We have adopted a 1⁄10 acre PCNthreshold for activities authorized byparagraph (b) of this NWP. There is noprovision in NWP 40 that requires thepermittee to notify the Corps of the pastuse of NWP 40. Subparagraph (b)(4) ofNWP 40 requires the submission of amitigation plan with the PCN. We donot agree with the fourth comment inthe previous paragraph, because we areonly requiring the submission of a

compensatory mitigation proposal withthe PCN. District engineers candetermine, on a case-by-case basis, thatcompensatory mitigation is notnecessary to ensure that the authorizedactivity results in minimal adverseeffects on the aquatic environment.Verification of wetland determinationsand wetland delineations onagricultural land that will remain inagricultural use is the responsibility ofNRCS, not the Corps.

One commenter stated that thereshould be a separate NWP to authorizedischarges of dredged or fill materialinto waters of the United States for theconstruction of farm buildings. Severalcommenters objected to this provision,stating that building pads for farmbuildings can be constructed outside ofwaters of the United States. Acommenter remarked that the terms forthe construction of farm buildingsshould be the same as the terms forNWP 29. One commenter said that theuse of farm buildings constructed nearwetlands and streams will contaminatethese waters.

We do not agree that a separate NWPfor the construction of farm buildings isnecessary. We have reduced the acreagelimit from 1 acre to 1⁄2 acre to ensurethat this NWP authorizes discharges ofdredged or fill material for theconstruction of farm buildings that haveminimal adverse effects on the aquaticenvironment. We disagree with thecomment that all farm buildings can beconstructed outside of wetlands. Farmbuildings serve different purposes andare typically larger than single familyresidences. Therefore, farm buildingsshould not be subject to the same termsand conditions as NWP 29. Thepollution of streams and other watersfrom agricultural operations areaddressed by other Federal, state, andlocal programs.

Several commenters stated that thisNWP should not authorize therelocation of streams or ditches. Onecommenter said that there should be alimit on the length of ditch that can berelocated, to ensure that the NWPauthorizes only activities with minimaladverse effects. Another commenterindicated that the impacts due to ditchrelocations should be included in the 2acre limit for this NWP.

The relocation of drainage ditches isoften necessary to increase agriculturalproduction on the farm tract. We haveimposed a 300 linear foot limit for therelocation of existing drainage ditchesconstructed in non-tidal streams. We donot agree that the relocation of drainageditches constructed in non-tidal watersof the United States should be includedin the 1⁄2 acre limit of paragraph (a) or

(b) because these relocation activitiestypically do not result in a net loss ofaquatic resource functions and values.

One commenter objected to theproposed NWP, stating that it treatsUSDA program participants and non-participants differently. Anothercommenter said that the terms andconditions of NWP 40 should not beestablished to provide equity betweendevelopers and agricultural producers,but instead should be based on activitiesthat are similar in nature that haveminimal adverse effects on the aquaticenvironment. One commenter statedthat NWP 40 should be subject to thesame terms and conditions as NWP 39.

The terms of paragraphs (a) and (b) donot treat USDA program participantsand non-participants differently. Thesetwo groups are subject to the sameacreage limits and mitigationrequirements. The only differencesbetween paragraphs (a) and (b) are theagencies reviewing the proposed workand the reporting requirement for USDAprogram participants. The terms ofNWPs 39 and 40 are established toensure that these NWPs authorizeactivities with minimal adverse effectson the aquatic environment. Both NWPs39 and 40 are subject to the 1⁄2 acrelimit, but different terms and conditionsare necessary because these NWPsauthorize different types of activities.

Two commenters expressed concernthat NWP 40 will be used by landdevelopers to prepare sites for futuredevelopment by filling wetlands andkeep the land in agricultural productionfor a few years, and then requestauthorization under NWP 39 foradditional discharges of dredged or fillmaterial into waters of the United Statesto construct a development. Onecommenter supported the provisionproposed in the July 1, 1998, FederalRegister notice that allowed the use ofthis NWP each time it was reissued.Another commenter opposed this NWP,indicating that it can be used repeatedlyon a single farm over time. Onecommenter said that discharges ofdredged or fill material into waters ofthe United States for the construction ofcompensatory mitigation sites should becalculated in the acreage loss of watersof the United States.

NWP 40 contains provisions thatprevent land developers from fillingwetlands on agricultural land toincrease the amount of non-wetlandarea on the site for future developments.If NWP 40 was used to authorizedischarges of dredged or fill materialinto non-tidal waters on the farm tractto increase agricultural production andthe current landowner wants to useNWP 39 to authorize the construction of



a residential, commercial, orinstitutional development, thecombined acreage loss of waters of theUnited States authorized by NWPs 39and 40 cannot exceed 1⁄2 acre. NWP 40cannot be used repeatedly on a singlefarm tract to exceed the 1⁄2 acre limit fora single and complete project.Discharges of dredged or fill materialinto waters of the United States toconstruct compensatory mitigation sitesshould not be calculated in the acreageloss of waters of the United States.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. For NWP 40 activities resultingin discharges of dredged or fill materialinto waters of the United States within100-year floodplains, General Condition26 requires the permittee to notify thedistrict engineer and demonstrate thatthe proposed work complies with FEMAor FEMA-approved local floodplainconstruction requirements.Furthermore, General Condition 26prohibits any above-grade fill underNWP 40 within regulatory floodwaysabove the headwaters. NWP 40 isreissued with the modificationsdiscussed above.

41. Reshaping Existing DrainageDitches: In the July 21, 1999, FederalRegister notice, we proposed to issue anNWP to authorize discharges of dredgedor fill material into non-tidal waters ofthe United States, excluding non-tidalwetlands adjacent to tidal waters, tomodify the cross-section of drainageditches constructed in these waters.

Two commenters opposed theissuance of this NWP if certainchannelized streams are considered tobe drainage ditches. One commentersaid that these activities should bereviewed through the individual permitprocess. Another commenter stated thatthis NWP will be abused by landownerswho want to reshape the banks of theirdrainage ditches under the guise ofimproving water quality.

The maintenance of drainage ditchesthat were constructed by channelizingstreams may be eligible for the Section404(f) exemption. The purpose of NWP41 is to provide a general permit thatauthorizes the reshaping of existingserviceable drainage ditches constructed

in non-tidal waters of the United States,excluding non-tidal wetlands adjacentto tidal waters, in a manner that benefitsthe aquatic environment. This NWPdoes not authorize reshaping of drainageditches that increases the area drainedby the ditch. We do not agree that thisNWP will be abused by landowners,because of the stringent terms of theNWP. Division engineers can revokethis NWP in areas where the reshapingof drainage ditches constructed in non-tidal waters of the United States resultsin more than minimal adverse effects onthe aquatic environment, individuallyor cumulatively.

Several commenters said that NWP 41is unnecessary, because these activitiesare authorized by NWP 3 or are exemptfrom Section 404 permit requirements.A commenter stated that the discussionof the Section 404(f) exemption for ditchmaintenance in the July 21, 1999,Federal Register notice is inaccuratebecause it did not include the recaptureprovision of Section 404(f)(2). Anothercommenter indicated that if the intent ofNWP 41 is to improve water quality,then these activities should beauthorized by NWP 27.

NWP 3 does not authorize thereshaping of drainage ditchesconstructed in waters of the UnitedStates. Maintenance activities explicitlyidentified in Section 404(f) are exemptfrom permit requirements, subject to therecapture provisions of Section404(f)(2). NWP 27 authorizes therestoration, enhancement, and creationof aquatic habitats, not the reshaping ofdrainage ditches.

One commenter said that this NWPshould apply to all man-made ditches,whether or not they are currentlyserviceable, as long as the croplanddraining to the ditch has not beenabandoned. A commenter requestedcriteria that will be used to determinewhether a particular ditch is currentlyserviceable. Another commenterrecommended expanding the scope ofthis NWP to authorize ditch relocation.One commenter said that sidecastinginto waters of the United States shouldnot be authorized by this NWP. Anothercommenter suggested that this NWPshould not authorize activities thatinvolve the installation of concretelining or other hard structures.

This NWP applies only to thereshaping of existing serviceabledrainage ditches constructed in watersof the United States. It does notauthorize the reconstruction of drainageditches. We have replaced the word‘‘existing’’ with the word ‘‘currently’’ inthe first sentence of this NWP. For thepurposes of NWP 41, the definition ofthe term ‘‘currently serviceable’’ is the

same as the definition provided in NWP3. This NWP does not authorize ditchrelocation, because relocating a drainageditch is likely to result in draining ofareas that were not previously drained.We have modified NPW 41 to allow forthe temporary sidecasting of materialinto waters of the United States.Material may be temporarily sidecast(up to three months) into waters of theUnited States, provided the material isnot placed in such a manner that it isdispersed by currents or other forces.The District Engineer may extend theperiod of temporary sidecasting not toexceed a total of 180 days, whereappropriate. This NWP does notauthorize discharges of dredged or fillmaterial into waters of the United Statesto line drainage ditches with concrete orother hard structures.

Several commenters said that thescope of waters for this NWP should beexpanded to include tidally influenceddrainage ditches. One commenter statedthat the text of this NWP is misleadingbecause the Corps has no legal authorityto regulate the reshaping of drainageditches landward of the ordinary highwater mark if there is no wetlandhydrology. Another commenterrecommended adding a provision toNWP 41 which states that themaintenance of existing drainageditches to their original dimensions andconfiguration is exempt from Section404 permit requirements.

We do not agree that this NWP shouldbe expanded to authorize discharges ofdredged or fill material into tidal watersof the United States or non-tidalwetlands adjacent to tidal waters. Thetext of NWP 41 clearly states that itauthorizes discharges of dredged or fillmaterial into non-tidal waters of theUnited States, excluding non-tidalwetlands adjacent to tidal waters. If theditch reshaping activity does notinvolve discharges of dredged or fillmaterial into waters of the UnitedStates, including wetlands, then theproject proponent does not need aSection 404 permit. The text of thisNWP includes a reference to the Corpsregulations that address the Section404(f) exemptions.

One commenter believes that thewater quality benefits of the activitiesauthorized by this NWP are doubtfuland that the use of this NWP willincrease the drainage of wetlands.Another commenter stated that theactivities authorized by this NWP willprevent the development of woodyvegetated buffers, which contradicts thegoal of no net loss of wetlands anddiscourage stream restoration. Threecommenters said that reshaping adrainage ditch will increase its



hydraulic capacity. One of thesecommenters indicated that the projectproponent should be required todemonstrate that the proposed workwill not increase the area drained by theditch. Two commenters indicated thatcompensatory mitigation should berequired for the activities authorized bythis NWP because drainage ditchesdrain wetlands.

Drainage ditches can be reshaped toimprove water quality, withoutincreasing the area drained by thoseditches. This NWP does not authorizeditch reshaping activities that expandthe area drained by the ditch. Theremoval of woody vegetation next to thestream is often necessary to maintain orreshape the drainage ditch. We do notagree that it is necessary to requireproject proponents to providedocumentation that demonstrates thatthe activity will not increase the areadrained by the ditch because the workis limited to restoring the ditch to itsoriginal capacity. Compensatorymitigation should not be required foractivities authorized by this NWP,because it does not authorize thedrainage of additional wetlands.

Three commenters recommended a500 linear foot limit on this NWP andone commenter suggested a 250 linearfoot limit. One commenter said thatthere should not be a limit on this NWPif the activity does not involvesidecasting into waters of the UnitedStates. One commenter stated that thePCN threshold should be reduced to 250linear feet. Two commenters indicatedthat a delineation of special aquatic sitesshould not be required for thoseactivities that require notification.

We do not agree that a linear footlimit should be placed on this NWP,because it authorizes activities thattypically benefit the aquaticenvironment. We are retaining NWP 41on the list of NWPs that require thesubmission of a delineation of specialaquatic sites with the PCN.

One commenter said that NWP 41should be conditioned to requirepermittees to obtain certification for bestmanagement practices from NRCS.Another commenter stated that thisNWP should include a conditionprohibiting the construction of bermsand levees that would impede overbankflow. One commenter said that thisNWP should authorize thereconfiguration of improperly designeddrainage ditches, with the submission ofa notification that documents the needfor reconfiguration, to minimize adverseeffects due to headcutting and increasesin sediment loads.

We do not agree that it is necessaryto require permittees to obtain

certification for best managementpractices from NRCS. General Condition21 states that NWP activities cannotpermanently restrict or impede thepassage of normal or expected highflows. Temporarily sidecast materialshould be placed so that it does notimpede overbank flows. No berms,levees, or other similar structures areauthorized by NWP 41. Thereconfiguration of improperly designeddrainage ditches can be authorized byindividual permits, regional generalpermits, or other NWPs.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. NWP 41 is issued with themodifications discussed above.

42. Recreational Facilities: In the July21, 1999, Federal Register notice, weproposed to issue an NWP to authorizedischarges of dredged or fill materialinto non-tidal waters of the UnitedStates, excluding non-tidal wetlandsadjacent to tidal waters, for theconstruction or expansion ofrecreational facilities that are integratedinto the existing landscape.

One commenter said that this NWPwill authorize activities with more thanminimal adverse effects on the aquaticenvironment and induce developmentof neighboring areas. One commenterstated that the word ‘‘passive’’ shouldbe retained in the title of the NWP. Onecommenter noted that the word ‘‘of’’should be replaced with the word ‘‘or’’after the word ‘‘construction’’ in the firstsentence. Two commenters said thatthis NWP should authorize dischargesof dredged or fill material into non-tidalwetlands adjacent to tidal waters.

The terms and conditions of thisNWP, as well as the ability of divisionand district engineers to place regionaland case-specific conditions on thisNWP, will ensure that this NWPauthorizes only activities with minimaladverse effects on the aquaticenvironment. We will not restore theword ‘‘passive’’ to the title of this NWPbecause it is an ambiguous term thatdoes not provide any value to the NWP.We have replaced the word ‘‘of’’ withthe word ‘‘or’’ in the first sentence of theNWP. The scope of applicable waters forthis NWP is limited to ‘‘non-tidal watersof the United States, excluding non-tidalwetlands adjacent to tidal waters’’ toensure that this NWP authorizes only

activities with minimal adverse effectson the aquatic environment.

Many commenters objected toincluding the construction andexpansion of golf courses and theexpansion of ski areas in the list ofactivities authorized by this NWP. Onecommenter stated that the improvementof ski areas should be authorized by thisNWP, in addition to the expansion ofthese facilities. One commenter saidthat other types of recreational facilitiesshould be authorized by this NWP ifthey do not result in substantialamounts of grading and filling and theadverse effects on the aquaticenvironment are minimal. Thiscommenter indicated that ball fieldsshould be authorized by this NWP.Another commenter said thatimpervious surfaces should beauthorized in areas where they arerequired for stabilization or meetingaccess requirements for disabledpersons. One commenter stated that theterm ‘‘substantial’’ needs to be definedso that it is consistently implemented bydistrict engineers.

As discussed in the July 21, 1999,Federal Register notice, NWP 42authorizes the construction andexpansion of golf courses and theexpansion of ski areas that areintegrated into the natural landscape.These types of recreational facilities canbe constructed without substantialamounts of grading and filling. NWP 42does not authorize the construction ofnew ski areas, but this NWP mayauthorize discharges of dredged or fillmaterial into waters of the United Statesto improve existing ski areas, providedthe activity meets the terms andconditions of this NWP.

This NWP does not authorize theconstruction or expansion of playingfields because these activities typicallyrequire substantial grading and filling tocreate level playing surfaces, as well asthe installation of drainage systems. Theconstruction or expansion of basketballcourts, tennis courts, racetracks,stadiums, and areas involve theconstruction of substantial amounts ofimpervious surfaces and therefore arenot authorized by this NWP.Recreational facilities not authorized bythis NWP may be authorized by otherNWPs, regional general permits, orindividual permits.

This NWP does not authorizedischarges of dredged or fill materialinto waters of the United States tostabilize areas within the recreationalfacility. NWP 13 may authorize bankstabilization activities associated withthe recreational facility. Small amountsof impervious surface may beconstructed in recreational facilities



authorized by this NWP to satisfy accessrequirements for disabled persons.District engineers will determine on acase-by-case basis whether theconstruction or expansion of a proposedrecreational facility will result insubstantial changes in preconstructiongrades.

Two commenters supported theproposed 1 acre limit. Severalcommenters stated that the proposedacreage limit is too large. Onecommenter said that the acreage limitshould be 1⁄2 acre and two commenterssuggested a 1⁄3 acre limit. A commenterrecommended a 100 linear foot limit forstream bed impacts and twocommenters suggested a 250 linear footlimit for stream bed impacts.

To ensure that this NWP authorizesactivities with minimal adverse effectson the aquatic environment, we havereduced the acreage limit to 1⁄2 acre andadded a 300 linear foot limit for fillingor excavating perennial or intermittentstream beds.

Two commenters said that this NWPshould have the same PCN thresholds asNWP 39. Two commentersrecommended a PCN threshold of 1⁄3acre. One commenter supported the 500linear foot PCN threshold for perennialand intermittent stream bed impacts.Three commenters stated that the PCNthreshold for stream bed impacts shouldbe reduced to 250 linear feet.

We have reduced the PCN thresholdto 1⁄10 acre. Since we have added a 300linear foot limit for stream bed impacts,we have deleted the 500 linear foot PCNthreshold for perennial and intermittentstream bed impacts.

One commenter said that the phrases‘‘has low impact on the aquaticenvironment’’ and ‘‘consists primarilyof open space that’’ should be deletedfrom NWP 42 because they areconfusing and will cause inconsistentimplementation of this NWP. Severalcommenters indicated that acompensatory mitigation proposal tooffset losses of waters of the UnitedStates should be required for allactivities that require notification.

We have deleted these phrases fromthe text of NWP 42. We do not agree thatit is necessary to require a compensatorymitigation proposal with the PCN,because of the types of recreationalfacilities authorized by this NWP.

Several commenters said that thisNWP should not authorize discharges ofdredged or fill material into wetlandsfor the construction of stables andsanitary facilities. One commenterstated that support facilities should beauthorized by NWP 39. Anothercommenter remarked that supportfacilities should be constructed in

uplands. One commenter said thatrestaurants and hotels should beauthorized by this NWP because thesefacilities support the recreationalfacility. One commenter requested adefinition of the term ‘‘small supportfacilities.’’ A commenter stated that thephrase ‘‘reduced fertilizer use’’ shouldbe replaced with the term ‘‘appropriatefertilizer use’’ in the last paragraph ofthis NWP.

We maintain our position that thisNWP should authorize small supportfacilities necessary for the operation ofthe recreational facility. Permittees arerequired to comply with GeneralCondition 19, which states that theproject proponent must avoid andminimize activities in waters of theUnited States on-site to the maximumextent practicable. We maintain ourposition that restaurants and hotelsshould not be authorized by this NWP.Restaurants and hotels can beauthorized by other NWPs, such asNWP 39, regional general permits, orindividual permits. District engineerswill determine, for those activities thatrequire notification, what constitutes a‘‘small’’ support facility that isauthorized by this NWP. We believe thatthe term ‘‘reduced fertilizer use’’ is moreappropriate because the intent is toencourage permittees to utilize lessfertilizer, which will reduce fertilizerloads on neighboring waterbodies.

In response to a PCN, districtengineers can require special conditionson a case-by-case basis to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority to require anindividual permit for the work. Theissuance of this NWP, as with any NWP,provides for the use of discretionaryauthority when valuable or uniqueaquatic areas may be affected by theseactivities. This NWP is subject toGeneral Condition 25, which restricts itsuse in designated critical resourcewaters. For NWP 42 activities resultingin discharges of dredged or fill materialinto waters of the United States within100-year floodplains, General Condition26 requires the permittee to notify thedistrict engineer and demonstrate thatthe proposed work complies with FEMAor FEMA-approved local floodplainconstruction requirements. NWP 42 isissued with the modifications discussedabove.

43. Stormwater ManagementFacilities: In the July 21, 1999, FederalRegister notice, we proposed to issue anNWP to authorize discharges of dredgedor fill material into non-tidal waters ofthe United States, excluding non-tidalwetlands adjacent to tidal waters, for theconstruction and maintenance of

stormwater management (SWM)facilities.

Several commenters supported theissuance of this NWP and onecommenter agreed that the constructionof SWM facilities in wetlands is oftennecessary and that these SWM facilitiesare often more effective than SWMfacilities constructed in uplands.Several commenters objected to theissuance of an NWP that authorizes theconstruction of SWM facilities inwetlands and other commentersopposed the issuance of a separate NWPfor SWM facilities. One commenter saidthat this NWP should authorizedischarges of dredged or fill materialinto non-tidal wetlands adjacent to tidalwaters.

We maintain the position discussed inthe July 21, 1999, Federal Registernotice that the construction of SWMfacilities in waters of the United Statesis often necessary and may providemore protection to the aquaticenvironment. SWM facilities located inwaters of the United States are oftenmore effective than SWM facilitiesconstructed in uplands, because stormrunoff flows to streams and wetlands,making these areas more effective attrapping sediments and pollutants thanupland areas. The local aquaticenvironment benefits from moreefficient SWM facilities. Low valuewetlands and low value ephemeral andintermittent streams may be the bestplaces to locate SWM facilities, toreduce adverse effects to higher valuewaters by attenuating storm flows andpreventing pollutants from furtherdegrading those areas. Divisionengineers can regionally condition thisNWP to prohibit its use in high valuewaters. For those activities that requirenotification, district engineers can addcase-specific conditions to ensure thatthe adverse effects on the aquaticenvironment are minimal or exercisediscretionary authority and require anindividual permit for activities withmore than minimal adverse effects. Wedo not agree that the scope of applicablewaters for this NWP should beexpanded to non-tidal wetlandsadjacent to tidal waters, because thisrestriction is necessary to ensure thatNWP 43 authorizes activities withminimal adverse effects on the aquaticenvironment.

Two commenters asked whether NWP43 authorizes the construction of damsand detention basins to build new SWMfacilities. Several commenters said thatthis NWP does not clearly identify theextent of the Corps regulatoryjurisdiction concerning stormwaterretention and detention facilities. One ofthese commenters stated that SWM



facilities constructed in uplands thatcontain wetland vegetation should notbe considered jurisdictional wetlands.One commenter said that 40 CFR 131.10prohibits states from designating wastetransport or waste assimilation uses forany water of the United States. Thiscommenter indicated that NWP 43 iscontrary to this regulation because itauthorizes the construction of SWMfacilities in waters of the United States.

This NWP authorizes the constructionof dams and detention basins for SWMfacilities. However, this NWP does notauthorize discharges of dredged or fillmaterial into perennial streams for theconstruction of new SWM facilities.SWM facilities that were constructed inuplands and have not been abandonedare generally not considered waters ofthe United States, but district engineersreserve the right to determine on a case-by-case basis whether these areas arewaters of the United States (see 51 FR41217). The provisions of 40 CFR 131.10do not prohibit discharges of dredged orfill material into waters of the UnitedStates for the construction ormaintenance of SWM facilities.Stormwater is not categorized as waste.

One commenter supported theproposed 2 acre limit and severalcommenters recommended increasingthe acreage limit to 3 acres for SWMfacilities constructed by localgovernments or local flood controlagencies. One commenter said that the2 acre limit is too low but anothercommenter indicated that this acreagelimit is too high. One commentersuggested a 1 acre limit for NWP 43 andanother commenter recommended a 1⁄4acre limit. One commenter said that thisNWP should have a 100 linear foot limitfor stream bed impacts.

We have reduce the acreage limit forthis NWP to 1⁄2 acre, to ensure that NWP43 authorizes activities with minimaladverse effects on the aquaticenvironment. In addition, we haveadded a 300 linear foot limit for fillingor excavating perennial or intermittentstream beds.

One commenter supported paragraph(b) of the proposed NWP (nowdesignated as paragraph (c)), whichstates that NWP 43 does not authorizedischarges of dredged or fill materialinto perennial streams for theconstruction of new SWM facilities. Onecommenter said that this NWP shouldnot authorize discharges of dredged orfill material into any stream withperennial stream segments, becausesome arid regions of the country haveperennial streams that occasionallybecome dry along certain reaches. Twocommenters stated that this NWPshould not authorize any discharges of

dredged or fill material into streams toconstruct SWM facilities. One of thesecommenters expressed concern that theNWP would authorize activities withmore than minimal cumulative adverseeffects in urban areas and said that theconversion of streams to SWM pondsresults in the creation of pollution sinksfor urban storm runoff. One commentersaid that this NWP should contain acondition that requires the maintenanceof stream base flows.

We have retained this paragraph inNWP 43. In arid regions of the country,division engineers can regionallycondition this NWP to prohibit orrestrict its use in streams withintermittent or ephemeral streamsegments, if those streams are highvalue waters. We do not agree that theprohibition in paragraph (c) should beextended to intermittent or ephemeralstreams because we believe that, underthe terms and conditions of this NWP,the construction of SWM facilities inthese waters will result in minimaladverse effects on the aquaticenvironment. District engineers willmonitor the use of this NWP to ensurethat it does not authorize activities withmore than minimal adverse effects onthe aquatic environment, individuallyand cumulatively. Compliance withGeneral Condition 21 will ensure thatsurface water flows will be maintainedto the maximum extent practicable.

Two commenters objected to theproposed NWP because it does notcontain limits for ephemeral streamimpacts. These commenters suggestedthat this NWP should contain languagestating that notification to the districtengineer is not required for theconstruction or maintenance of SWMfacilities constructed in ephemeralstreams. These commenters alsorecommended that the text of this NWPexplicitly state that SWM facilities thatwere originally constructed inephemeral streams that have becomeperennial or intermittent streams areexempt from any permit requirements.

The 1⁄2 acre limit for this NWPadequately limits impacts to ephemeralstreams. Division engineers canregionally condition this NWP toimpose limits on discharges of dredgedor fill material resulting in the loss ofephemeral stream bed, if there arespecific concerns for the aquaticenvironment in those regions. Anydischarges of dredged or fill materialinto waters of the United Statesassociated with SWM facilitiesconstructed in ephemeral streams thatare considered waters of the UnitedStates requires a Corps permit.

Two commenters said that the 1⁄4 acrePCN threshold is too small and two

other commenters suggested a 1⁄3 acrePCN threshold. One commenter statedthat the PCN threshold should be lower.

We have lowered the PCN thresholdfor this NWP to 1⁄10 acre, to ensure thatdistrict engineers have the opportunityto review all activities that have thepotential to result in more than minimaladverse effects on the aquaticenvironment. We have removed thePCN threshold for activities causing theloss of greater than 500 linear feet ofintermittent stream bed, since we haveadded a 300 linear foot limit for streambed impacts.

One commenter asked if the PCNthreshold applies to wetlands that werecreated as a result of the impoundmentof stormwater. This commenterexpressed concern that permitteeswould be required to mitigate forimpacts to wetlands created by theconstruction of an SWM facility. Thiscommenter said that these wetlands areoften removed during routinemaintenance activities and thatrequiring compensatory mitigation forthe losses of these created wetlandswould adversely affect the ability ofpermittees to effectively restore SWMfacilities to their original designcapacities.

Notification to the district engineer isrequired for discharges of dredged or fillmaterial that result in the loss of greaterthan 1⁄10 acre of waters of the UnitedStates. District engineers will determinethe appropriate amount ofcompensatory mitigation necessary tooffset losses of waters of the UnitedStates to ensure that the adverse effectson the aquatic environment areminimal. Subparagraph (d)(3) clearlystates that compensatory mitigation isnot required for maintenance activitiesin designated maintenance areas ofexisting SWM facilities.

One commenter recommended theremoval of subparagraph (c)(1) of theproposed NWP (now designated assubparagraph (d)(1)) because themaintenance of SWM facilities occurson an unpredictable, episodic basiswhich is not conducive to amaintenance plan. Another commentersaid that a compensatory mitigationproposal should not be required for allactivities that require notificationbecause the construction of some SWMfacilities may result in the establishmentof diverse, mature wetlands in areas thatare not disturbed for extended amountsof time. This commenter suggested thatthe district engineer should have theability to determine whether or notcompensatory mitigation should berequired for maintenance activitiesauthorized by this NWP.



Subparagraph (d)(1) does not requiremaintenance on a timed schedule. Themaintenance plan can include astatement that maintenance activitieswill be conducted as needed, to ensurethat the SWM facility continues tofunction effectively. The maintenanceplan should also identify the designatedmaintenance areas of the SWM facility.Subparagraph (d)(3) requires only thesubmission of a compensatorymitigation proposal with the PCN.Based on the review of a PCN, a districtengineer can determine thatcompensatory mitigation is unnecessarybecause the adverse effects on theaquatic environment are minimalwithout compensatory mitigation or thatthey will be mitigated as wetlands areestablished in the SWM facility.

Two commenters said that thereference to ‘‘watershed protectiontechniques’’ should be deleted fromparagraph (e) of the proposed NWP(now designated as paragraph (f)) or theterm should be defined for the purposesof NWP 43. One commenter stated thatthe maintenance of existing SWMfacilities should be exempted from therequirements of this paragraph. Onecommenter said that it is inappropriatefor the Corps to characterizebioengineering methods as bestmanagement practices. This commenterindicated that bioengineering methodsshould be considered as mitigation andthat the permittee should be givencompensatory mitigation credits forutilizing bioengineering methods. Onecommenter indicated that there is acontradiction in the July 21, 1999,Federal Register notice because thisnotice states the district engineer canallow the establishment of mitigationcredits in SWM facilities constructedwith bioengineering techniques, butmitigation credits cannot be establishedin regularly maintained areas in SWMfacilities. This commenter said that thatmitigation credits should be limited tonon-maintenance areas and thatmitigation credits should not be allowedfor the establishment of aquaticbenches.

We have retained the phrase‘‘watershed protection techniques’’ inparagraph (f) because these techniquesare an important mechanism to ensurethat NWP 43 authorizes activities withminimal adverse effects on the aquaticenvironment. We will not define thisterm because appropriate watershedprotection techniques may vary indifferent areas of the country. Forexample, in many arid regions of thecountry it may be impractical toestablish and maintain vegetated buffersnext to streams. In general, therequirements of paragraph (f) apply to

the construction of new SWM facilities,but best management practices shouldbe used when conducting maintenanceactivities. Bioengineering techniquescan be used to mitigate adverse effectson surface water quality. Thesetechniques should be considered as bestmanagement practices in accordancewith the definition in the ‘‘Definitions’’section of the NWPs. District engineerscan grant compensatory mitigationcredits for bioengineering methods ifthose methods result in net gains inaquatic resource functions and valuesand are not located in areas withinSWM facilities that require regularmaintenance. Aquatic benches canprovide compensatory mitigation, ifthose areas are not in designatedmaintenance areas of SWM facilities.

One commenter said the NWP 43 willauthorize the construction of more thanone stormwater management facility ina single watershed. This commenterstated that paragraph (e) of the proposedNWP (now designated as paragraph (f))should contain a provision that requiresthe consideration of other SWMfacilities located in the same watershed.

NWP 43 can be used to authorizemore than one SWM facility in aparticular watershed, provided each ofthose SWM facilities constitutes aseparate single and complete projectwith independent utility. Districtengineers will monitor the use of thisNWP to ensure that it does not authorizeactivities with more than minimaladverse effects on the aquaticenvironment, individually orcumulatively.

Several commenters said thatmaintenance of SWM facilities shouldbe considered exempt from Corpspermit requirements. One commenterstated that the requirements ofparagraph (f) of the proposed NWP (nowdesignated as paragraph (g)) areunnecessary because this activity can beauthorized by NWP 3.

The maintenance of SWM facilitiesconstructed in Section 404 waters is notexempt from Corps permitrequirements. However, mostmaintenance does not require a Corpspermit because the activity onlyinvolves incidental fallback of dredgedmaterial. NWP 43 authorizes themaintenance of existing SWM facilitiesthat involves discharges of dredged orfill material into waters of the UnitedStates. NWP 43 does not authorizemaintenance activities in Section 10waters.

One commenter expressed concernabout the provision in paragraph (g) ofthe proposed NWP (now designated asparagraph (h)). This commenter saidthat a developer could fill up to 3 acres

of waters of the United States underNWP 39 and the local government couldbuild an SWM facility for thedevelopment under NWP 43, whichwould exceed the total acreage for asingle and complete project.

We believe that most SWM facilitiesconstructed for a particulardevelopment will be built by thedeveloper, not the local government.The developer may turn over the SWMfacility to the local government formaintenance, but the construction of theSWM facility will be reviewed with theconstruction of the development. IfNWP 39s and 43 are combined toauthorize a single and complete project,the activity is subject to GeneralCondition 15. There may be instanceswhere a local government will constructa regional SWM facility that serves morethan one development. These regionalSWM facilities are considered to haveindependent utility from the serviceddevelopments and may be authorized byNWP 43.


44. Mining Activities: In the July 21,1999, Federal Register notice, weproposed to issue an NWP to authorizedischarges of dredged or fill materialinto certain types of non-tidal waters ofthe United States for aggregate and hardrock/mineral mining activities.

A large number of commentersopposed the issuance of NWP 44.Numerous commenters said that NWP44 is so restrictive that it will be of littleuse to the mining industry. Thesecommenters also indicated that miningcompanies will have little incentive todesign their projects to meet the termsand conditions of NWP 44 and thatthese companies will apply forindividual permits. Many commenters



stated that the activities authorized byNWP 44 will result in more thanminimal cumulative adverse effects onthe aquatic environment, individuallyand cumulatively. Several commenterssaid that the Corps should issueseparate NWPs for aggregate and hardrock/mineral mining activities. One ofthese commenters stated that aggregateand hard rock/mineral mining activitiesare distinct forms of mining and thatissuing one NWP to authorize both ofthese activities violates the similar innature requirement of Section 404(e) ofthe Clean Water Act.

The terms and conditions of this NWPwill ensure that it authorizes onlyaggregate and hard rock/mineral miningactivities with minimal adverse effectson the aquatic environment. Wherethere are specific concerns for theaquatic environment, division engineerscan regionally condition this NWP toprohibit or limit its use in high valuewaters. Since notification to the districtengineer is required for all activitiesauthorized by this NWP, each proposedmining activity will be reviewed bydistrict engineers to ensure that thework results in minimal adverse effects.We maintain our position that it isunnecessary to issue separate NWPs foraggregate and hard rock/mineral miningactivities. These activities aresufficiently similar in nature to warrantthe issuance of a single NWP.

One commenter asked what is meantby the term ‘‘hard rock/mineral mining’’as used in the context of NWP 44. Thiscommenter indicated that the districtengineer will determine whatconstitutes mining for the purposes ofthis NWP on a case-by-case basis. Thiscommenter also requested clarificationwhether NWP 44 authorizes alldischarges of dredged or fill materialinto waters of the United States for hardrock/mineral mining activities orwhether the Corps intends to limit thisNWP to a certain subset of mining andrelated activities. One commenter askedfor a definition of the term ‘‘supportactivities’’ as used in the context of thisNWP. Another commenter said that thisNWP should be expanded to authorizethe mining of clay and dirt.

For purposes of this NWP, hard rock/mineral mining is the extraction ofmetalliferous ores from subsurfacelocations. NWP 44 authorizes dischargesof dredged or fill material into certaincategories of waters of the United States,as identified in the first paragraph ofthis NWP, for aggregate miningactivities and hard rock/mineral miningactivities. District engineers willdetermine, on a case-by-case basis,whether a particular mining activity iswithin the scope of this NWP. NWP 44

also authorizes fill for support facilitiesnecessary for the mining operation.Support facilities authorized by thisNWP include berms, access and haulroads, rail lines, dikes, road crossings,settling ponds and settling basins,ditches, stormwater and surface watermanagement facilities, head cutprevention activities, sediment anderosion controls, and mechanizedlandclearing. In the July 21, 1999,Federal Register notice, we discussedthe applicability of this NWP to claymining activities and the extraction ofsoil to be used as fill material. NWP 44does not authorize clay mining or theextraction of fill dirt from waters of theUnited States. These activities can beauthorized by other NWPs, regionalgeneral permits, or individual permits.

Several commenters objected to thescope of applicable waters for this NWP,stating that it is too limited for mostmining activities A number ofcommenters stated that hard rock/mineral mining activities should beauthorized in ephemeral streams. Onecommenter said that NWP 44 shouldauthorize mining activities inheadwaters, including intermittent andperennial streams. Several commentersstated that there is no need to limit theuse of this NWP to the upper portion ofheadwaters and eliminate the ability forminers to relocate or divert mostheadwater stream segments. Manycommenters indicated that this NWPshould not authorize any activities instreams. One commenter asked whyNWP 44 does not authorize miningactivities between lower perennialstreams and the upper segments ofheadwater streams. One commenter saidthat the 1 cubic foot per secondthreshold should be replaced withephemeral streams as a limit for streambed impacts for aggregate miningactivities. Several commenters said thatthe Cowardin definition of the term‘‘lower perennial stream’’ should beincluded in the ‘‘Definitions’’ section ofthe NWPs.

The scope of applicable waters forNWP 44 is intended to ensure that thisNWP authorizes only those miningactivities that have minimal adverseeffects on the aquatic environment,individually and cumulatively. We donot agree that hard rock/mineral miningactivities should be authorized instreams because these activities aremore likely to result in more thanminimal adverse effects on the aquaticenvironment, due to the processingmethods used for this type of mining.NWP 44 authorizes aggregate miningactivities in perennial and intermittentstreams, provided those streams have anaverage annual flow of 1 cubic foot per

second (cfs) or less. NWP 44 alsoauthorizes aggregate mining activities inlower perennial streams. Limitingaggregate mining activities to thesesmall streams will ensure that the NWPauthorizes activities with minimaladverse effects on the aquaticenvironment. Streams segments locatedbetween lower perennial streams andthe upper reaches of headwater streamsoften provide valuable aquatic habitat,such as fish spawning areas. We do notagree that the 1 cfs threshold should bereplaced with ephemeral streams foraggregate mining activities inheadwaters. In the last paragraph of thisNWP, we have incorporated a modifiedversion of the Cowardin definition ofthe term ‘‘lower perennial riverinesubsystem’’ to clarify where aggregatemining activities in lower perennialstreams are authorized. We have alsoreplaced the word ‘‘and’’ with the term‘‘and/or’’ between parts (ii) and (iii) ofthe introductory paragraph to clarifythat a particular mining activityauthorized by NWP 44 can occur in anyor all of the specified waters.

Several commenters stated that theproposed 2 acre limit for NWP 44 is toolow. Numerous commenters suggestedthat this NWP should have a higher,indexed acreage limit. Threecommenters recommended a 3 acrelimit and another commenter said thatimpacts to lower perennial streams,isolated wetlands, and ephemeralstreams should be limited to 1 acre. Onecommenter stated that this NWP shouldhave a higher acreage limit becauseother Federal and state programs thataddress hard rock/mineral miningactivities require measures to minimizeimpacts to waters of the United States.One commenter suggested that theCorps impose a linear limit on perennialand intermittent stream bed impacts.Another commenter recommended a500 linear foot limit for stream bedimpacts.

To ensure that this NWP authorizesactivities with minimal adverse effectson the aquatic environment, we havereduced the acreage limit of NWP 44 to1⁄2 acre. We do not agree that this NWPshould have an indexed acreage limit.Since this NWP has applicabilitynationwide, it would be impractical toutilize state requirements for miningactivities, because their requirementsare likely to vary considerably betweengeographic areas. This NWP is limitedto small stream segments; therefore it isunnecessary to impose a linear limit onstream bed impacts. However, divisionengineers can regionally condition thisNWP to further limit stream impacts. Inaddition, notification is required for allactivities authorized by this NWP,



which will allow district engineers toreview proposed stream impacts on acase-by-case basis to ensure that thoseactivities result in minimal adverseeffects on the aquatic environment.

Two commenters objected torequiring PCNs for all activitiesauthorized by this NWP. Onecommenter suggested a 1⁄3 acre PCNthreshold. Several commenters statedthat the Corps does not have theauthority to review reclamation plansand the requirement to submitreclamation plans with the PCN shouldbe removed.

We believe that it is necessary torequire notification for all activitiesauthorized by this NWP, to ensure thatthe NWP authorizes activities withminimal individual and cumulativeadverse effects on the aquaticenvironment. As discussed in the July21, 1999, Federal Register notice, therequirement for submission of areclamation plan with the PCN is notintended to supersede other Federal orState requirements. The districtengineer will not require reclamationper se, but will review the reclamationplan to determine if compensatorymitigation is required to offset losses ofwaters of the United States and ensurethat the individual or cumulativeadverse effects of the mining activity onthe aquatic environment are minimal. Ifthere are no Federal or Staterequirements for a reclamation plan fora particular mining activity, theapplicant should state that fact in thePCN. The District Engineer may requirecompensatory mitigation for thatactivity to ensure that the adverseeffects on the aquatic environment areminimal. If the reclamation planrequired by Federal or state lawadequately addresses compensation forlosses of waters of the United States,then the District Engineer will notrequire additional compensatorymitigation, unless there are additionalconcerns for the aquatic environment.

Several commenters asked whetherparagraph (i) of the proposed NWP (nowdesignated as paragraph (h)) appliesonly to hard rock/mineral miningactivities because of the processesinvolved in mineral extraction. Some ofthese commenters indicated that the textof this paragraph implies that the 200foot setback applies to both aggregateand hard rock/mineral mining activities.A number of commenters said that theCorps does not have the authority toprohibit beneficiation and mineralprocessing within 200 feet of theordinary high water mark (OHWM) ofopen waters. One commenter asked ifthe 200 foot setback is necessarybecause NWP 44 does not authorize

discharges of dredged or fill materialinto open waters of the United States forhard rock/mineral mining activities.

The requirements of paragraph (h) ofthe proposed NWP 44, apply only tohard rock/mineral mining activities. Wehave inserted the phrase ‘‘for hard rock/mineral mining activities’’ into the textof paragraph (h) to clarify that the 200foot setback applies only tobeneficiation and mineral processingassociated with hard rock/mineralmining activities. In the miningindustry, the term ‘‘beneficiation’’applies solely to mineral ore processing.We have the authority to conditionNWP 44 to prohibit beneficiation andmineral processing within 200 feet ofthe OHWM of open waters because thisrequirement is necessary to ensure thatthe NWP authorizes activities withminimal adverse effects on the aquaticenvironment. Project proponentsconducting hard rock/mineral miningactivities in waters of the United Stateswho want to conduct beneficiation andmineral processing within 200 feet ofthe OHWM of open waters can requestanother form of DA permit for thoseactivities. The 200 foot setback requiredfor beneficiation and mineral processingactivities is necessary to protect waterquality.

We have also modified paragraph (i)(paragraph (j) of the proposed NWP) toclarify that the district engineer canrequire modifications to the waterquality management plan for the miningactivity to ensure that adverse effects towater quality are minimal. In addition,we have modified paragraph (k)(formerly paragraph (l)) to clarify whatconstitutes a single and completemining activity. In paragraph (l)(formerly paragraph (m)), we havechanged the first item to require thenotification to include a description ofwaters of the United States adverselyaffected by the proposed work.

Several commenters objected to theprovision in the last paragraph of NWP44 that prohibits hard rock/mineralmining within 100 feet of the OHWM ofheadwater streams. Another commentersaid that this NWP should containdepth limits for pits because large pitscould be constructed under this NWP.One commenter suggested adding aprovision to NWP 44 that requires thepermittee to fully reclaim or restore themined site before commencing miningactivities on another site in the samestream segment.

The prohibition against hard rock/mineral mining activities in waters ofthe United States within 100 feet of theOHWM of headwater streams isnecessary to ensure that these miningactivities result in minimal adverse

effects on headwater streams. It isunnecessary to add a depth limit formining pits because the 1⁄2 acre limitand the terms and conditions of NWP 44provide adequate protection of theaquatic environment. We do not agreethat it is necessary to require permitteesto fully reclaim or restore the mined sitebefore conducting mining activities onother sites because the NWP regulationsconcerning single and complete projectsalready adequately address multiplemining activities.

Several commenters requested furtherexplanation of the proposed‘‘clarification of jurisdiction’’ for miningoperations that was provided in thepreamble of the July 21, 1999, FederalRegister notice. These commentersasked for definitions of the terms‘‘cessation of operations’’ and‘‘abandonment.’’ Two commenters saidthat the ‘‘clarification of jurisdiction’’must clearly state that wetlands, ponds,and other waterbodies will not beconsidered ‘‘waters of the UnitedStates’’ until bond release. Onecommenter objected to changing the 15year term proposed in the preamble tothe July 1, 1998, Federal Register noticeto a 5 year term because mining is acyclical industry and shutdowns ofgreater than 5 years are not uncommon.

One commenter stated that the‘‘clarification of jurisdiction’’ statementis inconsistent with the effluentlimitation guidelines at 40 CFR part 440.This commenter said that pit lakesshould be regulated as waters of theUnited States, even though the miningsite has not been reclaimed. Thiscommenter expressed concern that pitlakes would not be considered waters ofthe United States even if the miningoperation ceased years ago. In addition,this commenter indicated that theconstruction of pit lakes would does notcomply with former paragraph (f) (nowdesignated as paragraph (e)) of theproposed NWP and General Condition21.

As a result of our review of thecomments addressing the proposed‘‘clarification of jurisdiction’’ we havedecided to withdraw the proposedguidance. District engineers willdetermine, on a case-by-case basis,whether a specific mined area has beenabandoned. In most cases, a mining sitewhere no construction, mining,excavation, processing, and/orreclamation activities have occurredduring the last 10 years would beconsidered abandoned, at the districtengineer’s discretion. Wetlands andwaterbodies within an abandonedmined area would be considered‘‘waters of the United States’’ if those



areas meet the criteria at 33 CFR part328.


IV. Comments and Responses onNationwide Permit General Conditions

In the July 21, 1999, Federal Registernotice, the Corps announced itsdecision to combine the NWP GeneralConditions with the Section 404 Onlyconditions. Two commenters supportedthis change. In the July 21, 1999,Federal Register notice, the Corpsproposed to modify nine NWP generalconditions and add three new NWPconditions. In response to that FederalRegister notice, we received manycomments on specific NWP generalconditions.

The general conditions in this FederalRegister notice will apply to all of theNWPs, including the NWPs publishedin the December 13, 1996, FederalRegister notice, unless a particulargeneral condition applies only tospecific NWPs listed in that generalcondition. The general conditionspublished today will become effectiveon June 5, 2000.

4. Aquatic Life Movements: In the July21, 1999, Federal Register notice, weproposed to modify this generalcondition by adding a requirement forculverts to be installed to maintain lowflow conditions.

One commenter stated that there aresituations, such as stream channels withbedrock substrate, where culvertscannot be installed below grade tomaintain low flows. This commenterrequested that the Corps remove therequirement to install culverts tomaintain low flows. Another commenterasked the Corps to remove the word‘‘substantially’’ from this general

condition because it imposes athreshold that is too high for activitiesthat result in minimal adverse effects onthe aquatic environment.

We do not agree that it is necessaryto add an exclusion for stream beds thatconsist solely of bedrock. Roadcrossings in these streams can beconstructed through other means, suchas bridges or fords, that allow low flowsto pass through the crossing. It isimportant to maintain low flowconditions to minimize disruptions tomovements of aquatic organisms.

We have retained the word‘‘substantially’’ in the text of thisgeneral condition because the removalof this word would change therequirement from ‘‘minimal adverseeffect’’ to ‘‘no adverse effect.’’ Werecognize that most work in waters ofthe United States will result in somedisruption in the movement of aquaticorganisms through those waters. Districtengineers will determine, for thoseactivities that require notification, if thedisruption of aquatic life movements ismore than minimal and either addconditions to the NWP to ensure thatthe adverse effects are minimal orexercise discretionary authority andrequire an individual permit. Thisgeneral condition is adopted asproposed.

7. Wild and Scenic Rivers: In the July21, 1999, Federal Register notice, wedid not propose any changes to thisgeneral condition. One commenterobjected to the inclusion of ‘‘studyrivers’’ in the text of this generalcondition.

We will retain ‘‘study rivers’’ in thisgeneral condition because study riversare afforded the same protections asdesignated Wild and Scenic Rivers,while they are in study status. Thisgeneral condition is retained withoutchange.

9. Water Quality: The draftmodification of General Condition 9 thatwas published in the July 21, 1999,Federal Register notice requiredpermittees to develop and implementwater quality management plans foractivities authorized by NWPs 12, 14,17, 18, 32, 39, 40, 42, 43, and 44, if sucha plan is not required by the state orTribal Section 401 water qualitycertification. The draft modification ofthis general condition also required theestablishment and maintenance ofvegetated buffers next to open waters,such as streams.

To clarify the requirements of GeneralCondition 9, we have divided thisgeneral condition into two paragraphs.Paragraph (a) discusses the requirementfor individual water qualitycertifications. Paragraph (b) addresses

the requirement for water qualitymanagement plans, including vegetatedbuffers.

Many commenters objected to therequirement for a water qualitymanagement plan, stating that the Corpslacks the statutory authority to requiresuch a plan. A large number ofcommenters said that this requirementis duplicative of existing programs, suchas state or Tribal water qualitycertification (WQC) and NationalPollutant Discharge Elimination Systemprograms. Several commenters statedthat the Corps does not have theauthority to determine whether aparticular state or Tribal programadequately addresses water quality. Twocommenters remarked that the Corpscannot override a state’s WQC decision.Several commenters said that theproposed modification of GeneralCondition 9 is not consistent with 33CFR 320.4(d), which states that:‘‘[c]ertification of compliance withapplicable effluent limitations andwater quality standards required underprovisions of section 401 of the CleanWater Act will be considered conclusivewith respect to water qualityconsiderations unless the RegionalAdministrator, EnvironmentalProtection Agency (EPA), advises ofother water quality aspects to be takeninto consideration.’’ A number ofcommenters said that the Corps does nothave the expertise to assess theeffectiveness of water qualitymanagement plans or stormwatermanagement plans for particularactivities. One commenter asked for adefinition of the term ‘‘water qualitymanagement plan.’’

Two commenters objected to theproposed modification of GeneralCondition 9 because it requiresstormwater management plans, even ifthose plans are not required by state orlocal governments. One commentersupported the statement in the July 21,1999, Federal Register notice that awater quality management plan is notrequired if water quality issues areadequately addressed by state or localgovernments. One commenter objectedto a statement in the July 21, 1999,Federal Register notice that a waterquality management plan is not requiredfor activities that have minimal adverseeffects on local water quality. Thiscommenter said that this statement isillogical because the NWPs canauthorize only activities that haveminimal adverse effects on the aquaticenvironment. Several commentersagreed that a water quality managementplan should not be required foractivities that have minimal adverseeffects and requested that the Corps add



appropriate language to GeneralCondition 9 because the draft generalcondition published in the July 21,1999, Federal Register notice does notprovide that flexibility. Severalcommenters stated that the requirementfor water quality management plans willsubstantially increase costs for localgovernments and the regulated public.One commenter suggested that theCorps should rely on standard bestmanagement practices to protect waterquality, instead of requiring case-specific water quality managementplans.

A goal of the Clean Water Act, asstated in section 101 of the Act, is torestore and maintain the chemical,physical, and biological integrity of theNation’s waters. We maintain ourposition that the requirement for a waterquality management plan for certainNWPs is necessary to ensure thatactivities authorized by those NWPs donot result in more than minimal adverseeffects to water quality. We can requirewater quality management plansthrough our statutory authority undersection 404 of the Clean Water Act,because the goal stated in section 101applies to all sections of the CleanWater Act.

A water quality management plan isa mechanism to ensure that the activityauthorized by NWP causes onlyminimal adverse effects on waterquality. It can include stormwatermanagement techniques and vegetatedbuffers next to open waters to protectwater quality. The terms of GeneralCondition 9 are not intended to replaceexisting state or Tribal section 401requirements. In regions with strongwater quality programs, districtengineers will defer to state, Tribal, andlocal requirements and will not requirewater quality management plans asspecial conditions of NWPauthorizations. If the 401 agency orother state or local agency does notrequire adequate measures to protectdownstream water quality, we have theauthority to require measures, includingthe construction of stormwatermanagement facilities or theestablishment of vegetated buffers nextto open waters, that will minimizeadverse effects to water quality.

If a district engineer determines thata water quality management plan isunnecessary because the authorizedwork will result in minimal adverseeffects on water quality, then a waterquality management plan is notrequired. For example, the districtengineer may determine that a waterquality management plan is not requiredfor an activity in a watershed that is notsubstantially developed. In addition, a

water quality management plan is notnecessary for activities that are servicedby a regional stormwater managementsystem. We have modified the firstsentence of paragraph (b) by replacingthe phrase ‘‘provide for protection ofaquatic resources’’ with the phrase ‘‘willensure that the authorized work doesnot result in more than minimaldegradation of water quality’’ to clarifywhy a water quality management planmay be required by the district engineer.

We have also modified the secondsentence of paragraph (b) by replacingthe word ‘‘project’’ with the phrase‘‘water quality management plan.’’ Thisclarifies that stormwater management isa component of the water qualitymanagement plan. If the districtengineer determines that a water qualitymanagement plan is not requiredbecause a specific activity will haveminimal adverse effects on waterquality, then stormwater managementmethods are not necessary if they arenot required by state or localgovernments.

We recognize that the developmentand implementation of a water qualitymanagement plan may increase costs tothe regulated public. It is important tonote that the purpose of the waterquality management plan is to ensurethat the authorized work results inminimal adverse effects on the aquaticenvironment, especially water quality.In most cases, the requirements of theSection 401 water quality certificationand state or local stormwatermanagement requirements willadequately address these issues. Thesestate and local requirements alreadyincur costs on project proponents andwe do not agree that the requirements ofGeneral Condition 9 will imposesubstantial additional costs. Since siteconditions are extremely variablebetween geographic regions of thecountry, we do not agree that genericbest management practices are a betterapproach to address water qualityconcerns.

Several commenters objected to therequirements of General Condition 9,because the Corps does not define whatconstitutes a ‘‘strong’’ state waterquality program. These commenters saidthat this requirement would confuse theregulated public because they cannotknow when a water quality managementplan will be required by the Corps fora particular NWP activity. Twocommenters recommended that theCorps add language to GeneralCondition 9 stating that water qualitymanagement plans will not be requiredin states with strong water qualityprograms. A commenter objected to theproposed modification of General

Condition 9 because a district engineermay require modifications that conflictwith the requirements of a state-issuedWQC. Another commenter said that theCorps should coordinate water qualitymanagement requirements with state orlocal authorities, which would reduceredundancy and assist in enforcement.

We cannot define, at a national level,what constitutes a strong state waterquality program. Corps districts canmake a programmatic determinationthat a particular state, Tribe, or localgovernment has a strong water qualityprogram and therefore the Corps wouldnot require project-specific waterquality management plans in thosejurisdictions. Where these programmaticdeterminations have not been made,district engineers will determine, on acase-by-case basis, when water qualitymanagement plans are necessary. Awater quality management plan for aparticular activity may be required as aspecial condition to the NWPauthorization, whereby the permitteewould submit the specifics of the waterquality management plan to the districtengineer prior to starting the work. Wedo not agree that it is necessary toexplicitly state in the text of GeneralCondition 9 that water qualitymanagement plans will not be requiredin states with strong water qualityprograms because this issue isadequately addressed in the preamble.

It is unlikely that a district engineerwill request modifications to aparticular activity that conflicts withWQC requirements, although the districtengineer may require additionalmeasures that are more stringent thanthe WQC conditions. We encouragedistrict engineers to coordinate waterquality management requirements withstate and local authorities, to effectivelyimplement the provisions of GeneralCondition 9.

One commenter suggested that theCorps add language to this generalcondition that explains that thestandard to be achieved is ‘‘minimal’’degradation, not ‘‘no’’ degradation ofwater quality. This commenter cited therequirement of minimal degradationthat was discussed in the preamble inthe July 21, 1999, Federal Registernotice. Two commenters objected to theproposed modification of GeneralCondition 9 because the Corps has notdefined what constitutes acceptable‘‘minimal degradation to water quality’’or ‘‘minimal adverse effects to waterquality.’’

General Condition 9 does not containa ‘‘no degradation’’ standard. GeneralCondition 9 requires methods tominimize degradation of downstreamaquatic habitats. We cannot provide



national definitions of the terms‘‘minimal degradation’’ or ‘‘minimaladverse effects’’ to water quality becauseaquatic systems vary considerablyacross the country. District engineerswill utilize their knowledge of localaquatic resources to make thesedeterminations.

Several commenters requested thatthe Corps add language to this generalcondition that states that therequirements of General Condition 9apply only to activities that result indischarges of dredged or fill materialinto waters of the United States, not toactivities in uplands. These commenterscited the example in the preamble to theJuly 21, 1999, Federal Register notice,which indicated that the water qualitymanagement plan does not apply to theentire upland site if only a smallamount of waters of the United Statesare filled to provide access to an uplanddevelopment site. Two commentersstated that the Corps needs to providea definition of the term ‘‘project’’ as itis used in the context of this generalcondition, because the general conditionrequires the establishment andmaintenance of vegetated buffers if theactivity occurs in the vicinity of openwaters. These commenters asserted thatthe Corps cannot require stormwatermanagement facilities or vegetatedbuffers to offset adverse effects causedby activities outside of waters of theUnited States.

The requirements for water qualitymanagement plans, including vegetatedbuffers next to open waters, apply onlyto those NWP activities that involvedischarges of dredged or fill materialinto waters of the United States. Waterquality management plans are requiredonly for those NWPs listed in paragraph(b). We have also modified this generalcondition to state that vegetated buffersnext to open waters are an importantcomponent of the water qualitymanagement plan. We have included areference to General Condition 19,which contains the vegetated bufferrequirements for the NWPs, in GeneralCondition 9.

The requirement for a water qualitymanagement plan does not apply toactivities in uplands, if the discharge ofdredged or fill material into waters ofthe United States constitutes only asmall portion of the entire activity. Inthis situation, if a water qualitymanagement plan is necessary to ensurethat the activity in waters of the UnitedStates causes only minimal degradationof water quality, the water qualitymanagement plan would address onlythe specific activity that results indischarges or dredged or fill materialinto waters of the United States.

However, if a large proportion of theproject area is comprised of waters ofthe United States, then the water qualitymanagement plan should consider thoseupland areas within the project area toensure that the overall activity willresult in minimal adverse effects towater quality. Since the applicable areafor the water quality management plandepends on the proportion of the projectarea that is composed of waters of theUnited States, we cannot provide adefinition of the term ‘‘project’’ for thepurposes of this general condition.

A commenter requested that the Corpsspecify the information that should beincluded in a water quality managementplan. One commenter stated that thegeneral condition should include aqualitative assessment procedure.Several commenters stated that waterquality management requirements mustbe directly related to an identifiablewater quality concern that is caused bythe authorized discharge of dredged orfill material into waters of the UnitedStates. A commenter recommendedadding a statement to this generalcondition explaining that water qualitymitigation will be required whennecessary to address site-specific waterquality concerns and that the requiredmitigation will be accomplishedthrough the most cost-effective methodto address those concerns. Severalcommenters suggested that the Corpsadd a definition of the term‘‘practicable’’ as it is used in the contextof this general condition.

We cannot specify the components ofa water quality management planbecause these requirements will varyacross the country. In general,stormwater management techniques andvegetated buffers next to open waterscan be components of a water qualitymanagement plan. The language ofGeneral Condition 9 is intended toallow flexibility and minimize theamount of information necessary todetermine compliance with itsrequirements. We cannot include aqualitative assessment procedure in thetext of the general condition because ofthe variability in aquatic resourcesacross the country. District engineershave their own criteria for assessingimpacts to water quality, based on localconditions. District engineers will usetheir judgement to qualitativelydetermine if a particular activitycomplies with this general conditionand will not require extensive analysesor reviews. Detailed studies are notrequired. We contend that theseassessments should be left to thejudgement of district engineers and willnot establish a national assessmentprocedure. Water quality management

requirements will be directly related tothe activity authorized by NWP, toensure that the authorized activityresults in minimal adverse effects onlocal water quality.

Water quality management techniquesmust be practicable and capable of beingaccomplished by the permittee. For thepurposes of General Condition 9, thedefinition of the term ‘‘practicable’’ isthe same as the definition in the firstsentence of paragraph (a) of GeneralCondition 19. Measures required bydistrict engineers to ensure thatactivities authorized by NWPs do notresult in more than minimal adverseeffects to water quality must bepracticable, while allowing theproposed work to accomplish theoverall project purpose. For example,the establishment and maintenance ofvegetated buffers next to open waters onthe project site will help protect waterquality, but the width of those vegetatedbuffers must not reduce the amount ofdevelopable land on the project site tothe extent that the proposed work is nolonger technologically or economicallyviable.

One commenter recommendedexpanding the water qualitymanagement plan requirement to NWPs3, 7, 8, 21, 23, 29, and 33. Onecommenter indicated that water qualitymanagement plans should not berequired for NWP 44 activities becausesuch plans are already required for hardrock/mineral mining operations. Onecommenter suggested waiving the waterquality management plan requirementfor discharges of dredged or fill materialinto ephemeral streams. One commenterstated that the requirement forstormwater management should applyonly to activities that impact more than4 acres of land.

We do not agree that water qualitymanagement plans should be requiredfor activities authorized by NWPs 3, 7,8, 21, 23, 29, and 33. We addressed theapplicability of this general condition toNWP 21 in the preamble of the July 21,1999, Federal Register notice and havenot changed our position on this issue.The other NWPs listed in the firstsentence of the previous paragraphauthorize activities that typically haveminor impacts on water quality. Eventhough other laws or regulations requirewater quality management plans forhard rock/mineral mining activities, weare not aware of a similar requirementfor aggregate mining activities.Therefore, we do not agree that NWP 44should be removed from the list ofapplicable NWPs. District engineers candetermine, on a case-by-case basis, thatwater quality management plans are notrequired for activities involving



discharges of dredged or fill materialinto ephemeral streams. We do not agreethat there should be a minimum projectsize to determine when stormwatermanagement facilities are necessary.

Numerous commenters addressed thevegetated buffer requirement in theproposed modification of this generalcondition. Two commenters requestedclarification whether the establishmentand maintenance of vegetated buffersare required for all NWPs or only theNWPs listed in the second sentence ofthe proposed modification of GeneralCondition 9. Two commenters said thatvegetated buffers should not be requiredunder all circumstances and that districtengineers should use their discretion ona case-by-case basis. Severalcommenters recommended the removalof the vegetated buffer requirement fromthis general condition. Two commentersstated that vegetated buffers should berequired only to address site-specificwater quality concerns when theestablishment and maintenance ofvegetated buffers is practicable.

For the purposes of General Condition9, vegetated buffers should be animportant component of a water qualitymanagement plan. The vegetated bufferrequirements for the NWPs arediscussed in paragraph (b) of GeneralCondition 19. If there are not any openwaters on the project site, thenvegetated buffers are not required. Inaddition, vegetated buffers are notrequired for Section 404 activities thatresult only in minimal adverse effects towater quality. District engineers willdetermine, on a case-by-case basis,when vegetated buffers are necessary toensure that the authorized work resultsonly in minimal adverse effects. The useof vegetated buffers in the NWP programis discussed in more detail in a previoussection of this Federal Register notice.

Several commenters requested thatthe Corps clarify what is meant by thephrase ‘‘in the vicinity’’ of an openwaterbody as it relates to the vegetatedbuffer requirement. Two commentersrecommended that the Corps replace‘‘vicinity’’ with ‘‘contiguous’’ to moreclearly establish a direct relationshipbetween the vegetated bufferrequirement and the impacts caused bythe authorized work. Two commenterssaid that the phrase ‘‘to the maximumextent practicable’’ needs to be definedfor the purposes of the vegetated bufferrequirement.

The term ‘‘in the vicinity’’ as used inthe context of this general condition,means the parcel where the activity islocated. If there are not any open waterson the project site, then vegetatedbuffers are not required. We havereplaced the word ‘‘adjacent’’ with the

word ‘‘next’’ to clarify that the vegetatedbuffer is to be established andmaintained on land next to the openwaterbody. We do not agree that theword ‘‘vicinity’’ should be replacedwith ‘‘contiguous’’ because therequirement for vegetated buffersapplies only to open waters on theproject site. We have removed thephrase ‘‘to the maximum extentpracticable’’ as it was used in thecontext of the vegetated bufferrequirement in the proposed generalcondition. This general condition isadopted with the modificationsdiscussed above.

11. Endangered Species: In the July21, 1999, Federal Register notice, weproposed to modify this generalcondition by adding a requirement forthe prospective permittee to submit,with the notification, the name(s) of theendangered or threatened species thatmay be affected by the proposed workor utilize designated critical habitat thatmay be affected by the proposed work.

One commenter objected to therequirement for prospective permitteesto notify the Corps if there may bethreatened or endangered species in thevicinity of the proposed activity.Another commenter objected to therequirement for applicants to notify theCorps for any activity that will occur indesignated critical habitat. A commenterstated that the requirement to notify thedistrict engineer if listed species orcritical habitat may be affected by theproposed activity should apply to bothFederal and non-Federal applicants.Two commenters opposed thenotification requirement, stating thatproject proponents cannot know if theirprojects are located in designatedcritical habitat. Several commentersstated that the Corps is responsible asthe lead Federal agency for compliancewith section 7 of the EndangeredSpecies Act (ESA) and that the Corpscannot delegate to the prospectivepermittee the determination whether alisted species or their critical habitatwould be affected by the proposedwork.

The notification requirements forGeneral Condition 11 are necessary toensure that activities authorized byNWPs comply with the requirements ofESA. Federal permittees are required toconduct Section 7 ESA consultationdirectly with either the U.S. Fish andWildlife Service (FWS) or the NationalMarine Fisheries Service (NMFS),depending on which species may beaffected by the proposed work.Prospective permittees should contactthe FWS or NMFS to determine if theiractivities may affect Federally-listedendangered or threatened species or

destroy or adversely modify designatedcritical habitat. We recognize that weare responsible for determining whetheran activity is likely to jeopardize thecontinued existence of a threatened orendangered species or whether anactivity will adversely modify or destroydesignated critical habitat, but wecannot require permittees to submitnotifications for all NWP activities sothat we can determine compliance withESA. Division engineers can regionallycondition the NWPs to requirenotification for NWP activities in knownlocations of Federally-listed endangeredor threatened species and theirdesignated critical habitat.

One commenter suggested that aspecific distance should be used todefine the phrase ‘‘in the vicinity’’ as itis used in this general condition.Another commenter said that the Corpsneeds to define what constitutes‘‘affecting critical habitat’’ as it appliesto the NWPs. One commenter stated thatthe word ‘‘destroy’’ should be defined ordeleted from this general condition. Acommenter stated that any activity thatmay affect a Federally-listed endangeredor threatened species or its criticalhabitat must be reviewed by the FWS.Another commenter said that individualpermits should be required for activitiesthat may affect endangered orthreatened species or their criticalhabitat.

We do not agree that a specificdistance should be established to definethe term ‘‘vicinity’’ because the area thatconstitutes the ‘‘vicinity’’ varies fromspecies to species. Activities in watersof the United States within criticalhabitat have the potential to destroy oradversely modify that critical habitatand should be reviewed by the Corps toensure compliance with ESA. Thephrase ‘‘destruction or adversemodification’’ is defined at 50 CFR402.02 and this definition applies to thephrase ‘‘destroy or adversely modify’’that is found in General Condition 11.We will consult with FWS and NMFSfor those activities that may affect orjeopardize Federally-listed endangeredor threatened species or may destroy oradversely modify the designated criticalhabitat of those species. We do not agreethat all activities that may affectendangered or threatened species ortheir critical habitat should be reviewedunder the individual permit processbecause these activities can often beauthorized by NWPs in compliance withESA.

As a consequence of the NWP/GeneralPermit Programmatic ESA Section 7consultation, district engineers willdevelop Standard Local OperatingProcedures for Endangered Species and



may develop other procedures to ensurethat the NWPs and general permits willcomply with the ESA. In addition, aspart of this process, the Corps may needto adopt regional conditions forendangered species. To ensure thatthese conditions and procedures areproperly coordinated, the decisionauthority for adding regional conditionsfor endangered species has beendelegated to the district engineer inGeneral Condition 11. This generalcondition is adopted with themodifications discussed above.

12. Historic Properties: In the July 21,1999, Federal Register notice, we didnot propose any changes to this generalcondition. One commenter objected torequiring compliance with the NationalHistoric Preservation Act (NHPA) foractivities authorized by NWPs. Anothercommenter opposed the notificationrequirement of General Condition 12and asked how a permittee would knowif his or her activity will affect historicproperties. One commenter stated thatthe requirement to notify the districtengineer if eligible cultural resourcesmay be affected by a proposed activityshould apply to both Federal and non-Federal applicants. A commenter saidthat individual permits should berequired for all activities that may affecteligible cultural resources. Onecommenter indicated that the Corpsshould not require extensivedocumentation from an applicantdemonstrating compliance with theNHPA.

All activities that require a Federallicense (including NWPs) must complywith the NHPA. A prospective permitteecan contact the local State HistoricPreservation Officer to determine if theproposed work will affect knownhistoric properties. Both Federal andnon-Federal permittees are required tonotify district engineers whenauthorized activities may affect listed oreligible historic properties. We do notagree that all activities that may affectcultural resources should be reviewedunder the individual permit processbecause these activities can often beauthorized by NWPs in compliance withthe NHPA. The Corps requires theminimum documentation necessary toensure compliance with the NHPA. Thisgeneral condition is retained withoutchange.

13. Notification: In the July 21, 1999,Federal Register notice, we proposed tochange the 30 day PCN review period to45 days, and include a requirement fordistrict engineers to determine whethera PCN is complete within 30 days of thedate of receipt.

Two commenters supported theproposed changes to the PCN review

period. Many commenters objected tothe proposed changes, stating thatallowing 30 days for a completenessreview and 45 days to determinewhether the proposed work qualifies forNWP authorization makes the NWPprocess similar to the standard permitprocess, in terms of processing times.Two commenters remarked that the 30-day completeness review period shouldbe included in the 45-day PCN reviewperiod. Two commenters said that thePCN should be considered complete ifthe Corps does not request additionalinformation prior to the end of the 30day completeness review period, so thatthe Corps cannot defer processing thePCN indefinitely. One commentersuggested that the Corps notifyprospective permittees, throughtelephone calls or postcards, if theirPCNs are complete. This commentersaid that such a process would relievesome burdens associated with theproposed revisions to the notificationprocess. Another commenterrecommended modifying GeneralCondition 13 to impose a time limit forthe Corps to notify prospectivepermittees that all of the requestedinformation has been received.

The 30 day completeness reviewperiod and the 45 day PCN reviewperiod are not independent of eachother (i.e., they do not add up to a 75day review period for NWP activities).If a prospective permittee submits acomplete PCN to the Corps districtoffice, the 45 day PCN review periodbegins on the date of receipt and thedistrict engineer must decide whether toissue an NWP verification or exercisediscretionary authority within 45 days.If the 30 day completeness reviewperiod has passed since the date ofreceipt of a PCN and the districtengineer has not requested additionalinformation to make the PCN complete,the applicant can assume the PCN iscomplete.

Other commenters recommendeddifferent time limits for PCNcompleteness reviews. One commentersaid that the completeness reviewshould be done on the date of receipt ofthe PCN and the applicant should benotified immediately that additionalinformation is necessary to begin thePCN process. Other recommended timeperiods for completeness reviewincluded 7, 10, and 15 days. Onecommenter objected to the 30 daycompleteness review period, stating thatit was longer than the completenessreview period for standard permits (i.e.,15 days).

It is impractical for district engineersto conduct completeness reviews on thedate of receipt. We believe the 30 day

completeness review period is necessarybecause district engineers can makeonly one request for the informationneeded for a complete PCN.

Two commenters requestedclarification whether the 45 day PCNreview period starts on the day theCorps determines the PCN to becomplete or the date the complete PCNis received in the district office. Onecommenter asked if the verification ofwetland delineations would be donewithin the 30 day completeness reviewperiod. Two commenters supportedallowing only one request for additionalinformation. One commenter assertedthat allowing only one request foradditional information would causeCorps personnel to request largeamounts of information, whether or notthat information is necessary for thereview of the PCN.

The 45 day PCN review period beginson the date of receipt of a completePCN. If a complete PCN is submitted,the 45 day PCN review period starts onthe date of receipt. If the PCN isincomplete and the prospectivepermittee submits the necessaryinformation to make the PCN complete,the 45 day PCN review period starts onthe date the additional information isreceived by the district engineer. Theverification of delineations of specialaquatic sites will be conducted duringthe 30 day completeness review period.A complete PCN is comprised of theinformation listed in paragraph (b) ofGeneral Condition 13. If the prospectivepermittee provides all of the relevantinformation listed in paragraph (b), thenthe PCN is complete (provided anydelineations of special aquatic sites areaccurate) and the 45 day PCN reviewperiod begins. District engineers cannotrequest information not listed inparagraph (b). If the district engineerbelieves that the proposed work mayresult in more than minimal adverseeffects on the aquatic environment,based on the information required forthe PCN, then he or she should exercisediscretionary authority and require anindividual permit to conduct a morethorough review of that activity.

Many commenters suggested that theCorps retain the 30 day PCN reviewperiod. One commenter said that 15days would be adequate for the Corps todetermine whether a complete PCNwould qualify for NWP authorizationand another commenter suggested a 40day review period. Many commentersstated that the larger workload causedby the proposed new and modifiedNWPs is not sufficient justification forincreasing the PCN review period to 45days and requested that the Corpsmaintain the 30 day period.



We contend that the 45 day period isnecessary to determine if a PCN iscomplete (within 30 days), conductagency coordination if necessary, andreview the PCN to determine if theproposed work is authorized by NWP.NWP 26 had a PCN review period of 45days and we believe it is necessary toretain this time period for the newNWPs.

Several commenters stated thatparagraph (b) of General Condition 13should clearly state what is required fora complete PCN, so that applicants willknow what they need to submit to thedistrict engineer. These commentersalso said that clearly stating what isrequired for a complete PCN wouldpromote consistency. One commenterrequested that the Corps clarify whetherthe phrase ‘‘additional information’’refers only to the items necessary tomake the PCN complete or to any otherinformation that the district engineerbelieves is necessary for the review ofthe PCN. One commenter recommendedadding a requirement for prospectivepermittees to supply all informationidentified in the NWP, specialconditions, and regional conditions, aswell as any information required by thedistrict engineer. Two commentersobjected to the amount of informationrequired for PCNs.

Paragraph (b) of General Condition 13lists all of the information necessary fora complete PCN. Corps districts canprovide checklists to assist prospectivepermittees, especially if they haveregional conditions that specifyadditional information that must besubmitted with PCNs. The phrase‘‘additional information’’ as used in thecontext of General Condition 13 refersonly to the information that is necessaryto make the PCN complete. We havelimited the amount of information thatmust be submitted with a PCN to theminimum necessary to determinewhether the proposed work will resultin minimal adverse effects on theaquatic environment, individually andcumulatively.

Two commenters said that thestatement in General Condition 13indicating that the permittee cancommence work if the district engineerdoes not respond to the PCN within 45days is meaningless because of thesuspension procedures at 33 CFR330.5(d)(2), which allow the Corps tostop NWP activities in progress. Thesecommenters said that the permitteecannot safely proceed with the activityuntil he or she receives authorizationfrom the Corps.

Some prospective permittees maywant assurance that the proposed workis authorized by NWP and will not start

work until a written verification isreceived from the Corps. Theprocedures at 33 CFR 330.5(d)(2)provide a process where a permitteewho begins work after the 45 day PCNperiod expires can make their case thatthey have expended resources and itwould be inequitable for the Corps tomodify their project.

One commenter suggested that thePCN review period should be waived instates using monthly coordinationmeetings to review and process permitapplications. One commenter suggestedadding a fourth item in paragraph (a),which would state that the prospectivepermittee shall not begin the activity ‘‘Ifthe District Engineer has notified theprospective permittee in writing that thenotification is still incomplete.’’

Paragraph (a) of General Condition 13does not prohibit district engineers fromresponding to PCNs in a more timelymanner provided all other requirementsare completed. Paragraph (a) clearlystates that district engineers will notifyprospective permittees if their PCNs arestill incomplete, and since the 45 dayclock does not start until the PCN iscomplete, the prospective permitteemay not start work.

One commenter stated that all PCNsshould include delineations of specialaquatic sites. Another commenterrecommended adding NWPs 3 and 31 toparagraph (b)(4). One commenter saidthat delineations of riffle and poolcomplexes should not be required forPCNs because such a requirementimposes burdens on applicants,especially on large projects such ashighways. A commenter suggested thatthe phrase ‘‘submerged aquaticvegetation’’ used in paragraph (b)(4)should refer only to vascular plants.

We do not agree that delineations ofspecial aquatic sites should besubmitted with all NWP PCNs. SinceNWPs 3 and 31 authorize maintenanceactivities, it is not necessary to submitdelineations of special aquatic sites withPCNs for these activities. Mapsindicating stream segments containingriffle and pool complexes and theirlocation can be used as delineations ofthese special aquatic sites. It is notnecessary to map each riffle and poolcomplex within a stream. The phrase‘‘submerged aquatic vegetation’’ refersonly to vascular plants, not algae.

One commenter suggested that theCorps revise paragraph (b) of GeneralCondition 13 to require documentationof baseline conditions for NWP 3activities. This commenter alsorecommended that PCNs for NWP 3, 7,and 31 activities should includelocations of disposal sites for dredged orexcavated material. One commenter said

that detailed mitigation and monitoringplans should be submitted with PCNsfor activities authorized by NWPs 12,14, 39, 40, 41, 42, 43, and 44. Onecommenter indicated that a statementdiscussing on-site avoidance andminimization should be required for allNWP activities that require PCNs.Another commenter asserted that astatement of avoidance andminimization should be required forNWPs 12, 14, 40, 41, and 42. Onecommenter said that the informationrequired to be submitted with a PCN isinadequate to ensure compliance withESA.

The text of paragraph (iii) of NWP 3states that the permittee ‘‘should’’provide evidence to justify the extent ofthe proposed restoration, but suchevidence is not required. We do notagree that it is necessary to includelocation maps of disposal sites fordredging or excavation activitiesauthorized by NWPs 3, 7, and 31,because the material removed fromwaters of the United States will not bedeposited in waters of the United States,unless the district engineer issues aseparate authorization to discharge thatmaterial into waters of the UnitedStates. Under that separateauthorization process, the districtengineer will assess the impacts to thedisposal site. We maintain our positionthat compensatory mitigation plans,including monitoring plans, submittedwith a PCN can be either conceptual ordetailed. District engineers can requiremore detailed compensatory mitigationplans through special conditions of theNWP authorization where appropriate.We also do not agree that avoidance andminimization statements should berequired for other NWPs. We maintainour position on this matter as it wasdiscussed in the July 21, 1999, FederalRegister notice. The information thatmust be submitted with a PCN isadequate for the Corps to make its initialdetermination concerning compliancewith ESA.

Two commenters noted that the Corpsdid not add a provision to paragraph (b)of General Condition 13 that requiresprospective permittees to submit a listof names of Federally-listed endangeredor threatened species and the names orlocations of historic properties that maybe affected by the proposed work. TheCorps stated in the July 21, 1999,Federal Register notice (64 FR 39340)that it would add these provisions toGeneral Condition 13.

We have added these requirements toparagraph (b) of General Condition 13 assubparagraphs (17) and (18),respectively. In addition, we havemodified subparagraph (b)(9) to comply



with the recent modification of NWP 29,which reduced the acreage limit to 1⁄4acre (see 64 FR 47175). We have alsoadded subparagraph (b)(19), whichdescribes the documentation that mustbe submitted with the PCNs for certainNWP activities within 100-yearfloodplains.

In paragraph (d) of the proposedmodification of General Condition 13,one commenter objected to the use ofthe term ‘‘net’’ in the context ofdetermining whether the adverse effectsto the aquatic environment are minimal,after considering compensatorymitigation that offsets impactsauthorized by NWPs. This commentersays that the wording of the secondsentence of paragraph (d) is contrary tothe Corps policy of determining thatimpacts authorized by NWPs areminimal without consideringmitigation. One commenter asked if theterm ‘‘mitigation’’ in paragraph (d)refers to compensatory mitigation.Another commenter requested adefinition of the term ‘‘adverse’’ as it isused in the context of paragraph (d).One commenter requested that theCorps clarify whether the word ‘‘work’’in paragraph (d) refers only tomitigation work or the permittedactivity.

The language of paragraph (d)complies with Corps regulations for theNWP program, specifically 33 CFR330.1(e)(3), which provides for the useof compensatory mitigation to offsetlosses of waters of the United Statesauthorized by NWPs and ensure that theadverse effects on the aquaticenvironment are minimal. The word‘‘mitigation’’ in the second sentence ofparagraph (d) refers to the mitigationprocess. We do not agree that it isnecessary to provide a definition of theterm ‘‘adverse’’ since the commonlyused definition is applicable. The word‘‘work’’ refers to the proposed activity,but the compensatory mitigation is alsoconsidered when determining whetherthe adverse effects on the aquaticenvironment are minimal.

Two commenters supported the 1 acrethreshold for agency coordination. Onecommenter suggested a 1⁄3 acrethreshold. A number of commenterssaid that agency coordination should berequired for all NWP activities thatrequire PCNs. One commenterrecommended agency coordination foractivities that result in the loss of greaterthan 250 linear feet of stream bed. Onecommenter said that PCNs should becoordinated with the U.S. FWS for anyNWP activity that could affectFederally-listed endangered orthreatened species or their habitats.Another commenter indicated that

agency coordination of PCNs should beconducted for any NWP activities instreams or aquatic resources of naturalimportance.

We are reducing the 1 acre thresholdfor agency coordination to 1⁄2 acrebecause most of the new NWPs havemaximum limits of 1⁄2 acre. There willbe coordination of some PCNs becausethere are NWPs based on othergovernment programs, such as NWPs 17and 38, that can authorize activities thatresult in the loss of greater than 1⁄2 acreof waters of the United States. If thoseNWPs require submission of a PCN tothe district engineer and the proposedwork will result in the loss of greaterthan 1⁄2 acre of waters of the UnitedStates, then the Corps will conductagency coordination. Activities that mayaffect Federally-listed endangered orthreatened species or their criticalhabitat will be coordinated with theU.S. FWS or NMFS, as appropriate.District engineers can conduct agencycoordination in other circumstances attheir discretion.

One commenter asked for clarificationwhether a PCN is transmitted toagencies upon receipt of the PCN orwhether the PCN must be determined tobe complete before it is sent to theagencies. Two commenters said that, foractivities requiring agency coordination,the applicant should mail copies of thePCN to the review agencies to expeditethe PCN process. One commenterrecommended adding the FederalEmergency Management Agency(FEMA) to the list of agencies forcoordination. Another commenter saidthat the Corps should provide writtenresponses to agency comments receivedin response to PCNs. One commenterrecommended inserting the word‘‘aquatic’’ between the words ‘‘adverseenvironmental’’ in paragraph (e).

We do not start agency coordinationuntil we determine that the PCN iscomplete. It would not be advantageousfor a prospective permittee to submit aPCN directly to review agencies becausethe PCN may not be complete. Districtengineers can, at their discretion,include FEMA with the other reviewagencies. We do not agree that districtengineers should provide writtenresponses to agency comments, exceptwhere Essential Fish Habitat (EFH)conservation recommendations arereceived from NMFS in response to aPCN. There is a statutory requirement inthe Magnuson-Stevens FisheryConservation and Management Act forFederal action agencies to providewritten responses to EFH conservationrecommendations. We have modifiedparagraph (e) to address thisrequirement. We agree that we should

include the word ‘‘aquatic’’ in the firstsentence of paragraph (e).

Two commenters opposed theproposed changes to the agencycoordination period. Three commenterssaid that 15 days is enough time foragency coordination. Other commenterssuggested 5, 10, or 30 days for agencycoordination. One commenterrecommended 45 days for agencycoordination, with the ability foragencies to receive an extension of time.One commenter requested clarificationwhether the 25 day agency reviewperiod is added to the 45 day PCNreview period or whether the agencycoordination process occurs during the45 day PCN review period. Onecommenter said that the 25 day agencycoordination period conflicts with ESAregulations, which provide 30 days torespond to a request for a list of speciesthat may occur in the project area.

We will maintain the 10 day periodfor agencies to request an additional 15days to provide substantive, site-specificcomments on PCNs. Twenty-five days issufficient for agencies to comment onPCNs. The agency coordination processoccurs during the 45 day PCN reviewperiod. During the agency coordinationperiod, the Corps is not requesting a listof Federally-listed endangered orthreatened species that may be in theproject area. Therefore, the agencycoordination period does not violateESA regulations.

Several commenters objected to thetext in paragraph (f) that requireswetland delineations to be performed inaccordance with the current methodrequired by the Corps. Thesecommenters assert that this languageallows Corps personnel to use methodsand criteria that are not in the 1987Corps of Engineers WetlandsDelineation Manual and expand theCorps jurisdiction. These commenterssaid that the text of this paragraphshould be revised to specificallyreference the 1987 Corps of EngineersWetlands Delineation Manual. Anothercommenter recommended thatparagraph (f) include a statement thatthe permittee is responsible for theaccuracy of the delineation of specialaquatic sites.

We do not agree with thesecommenters. The only currentlyacceptable method that the Corps usesfor delineating wetlands is the 1987Corps of Engineers WetlandsDelineation Manual and associatedguidance. We will not change the text ofparagraph (f) because the requireddelineation manual may change in thefuture.

Several commenters recommendedcombining paragraph (g) of General



Condition 13 with General Condition 19so that the mitigation requirements ofthe NWPs would be in one generalcondition. One commenter suggestedthat deed restrictions and protectivecovenants should be required as part ofa compensatory mitigation proposalsubmitted with a PCN. One commenterrecommended that the Corps reinstatethe following language intosubparagraph (ii) of paragraph (g):‘‘* * *should consider mitigationbanking and other forms of mitigationincluding contributions to wetland trustfunds, in lieu fees to non-profit landrestoration and stewardshiporganizations, State or county naturalresource management agencies, wheresuch fees contribute to the restoration,creation, replacement, enhancement, orpreservation of wetlands.’’

We have moved paragraph (g) ofGeneral Condition 13 to GeneralCondition 19. Prospective permitteescan submit either conceptual or detailedcompensatory mitigation proposals withtheir PCNs, but they are not required tosubmit deed restrictions or protectivecovenants at that time. As specialconditions to a NWP verification, thedistrict engineer may require deedrestrictions or protective covenants forcompensatory mitigation projects. Wedo not agree that it is necessary to putthe referenced text back into the generalcondition because General Condition 19allows district engineers the flexibilityto consider all appropriate forms ofcompensatory mitigation, includingmitigation banks and other consolidatedapproaches to compensatory mitigation.

One commenter objected to thestatement in paragraph (g) of theproposed modification of GeneralCondition 13 that identifies mitigationbanks, in lieu fee programs, and othertypes of consolidated mitigation aspreferred methods. This commenter saidthat if compensatory mitigation isnecessary, the method should be at thediscretion of the applicant and considereconomic and environmental factors.This commenter also stated that theCorps should only determine if thecompensatory mitigation methodchosen by the applicant is appropriate.

Our preference for consolidatedcompensatory mitigation methods suchas mitigation banks does not prohibitthe use of other methods to providecompensatory mitigation, if the districtengineer determines that the othermethods are appropriate and adequatelyoffset losses of aquatic resourcefunctions and values. General Condition19 clearly states that mitigation must bepracticable, and the district engineerwill consider costs and environmentalfactors when determining if the

prospective permittee’s compensatorymitigation proposal is acceptable.

Two commenters stated that the Corpsshould post PCNs on the Internet.Another commenter concurred with theCorps position against posting PCNs onthe Internet, stating that such a processwould result in delays to the regulatedpublic and provide no additional valueto the review of PCNs.

As discussed in the July 21, 1999,Federal Register notice, we maintainour position that posting of PCNs onInternet home pages would provide noadded value to our review of thesePCNs.

This general condition is adoptedwith the modifications discussed above.

15. Use of Multiple NationwidePermits: In the July 21, 1999, FederalRegister notice, we proposed to modifythis general condition to ensure that theuse of more than one NWP to authorizea single and complete project will resultin minimal adverse effects on theaquatic environment.

One commenter supported theproposed modification of GeneralCondition 15. Many commentersobjected to the proposed modification ofthis general condition, stating that itwould prohibit the authorization ofactivities with minimal adverse effects.One commenter said that the proposedmodification is contrary to 33 CFR330.6(c) and must be addressed throughrulemaking. A number of commentersindicated that the use of more than oneNWP to authorize a single and completeproject should be unrestricted becauseof the low acreage limits of the proposednew and modified NWPs. Severalcommenters objected to permitteesusing more than one NWP to authorizea single and complete project. Onecommenter said that the proposedmodification of this general conditionwill cause more piecemealing ofactivities and discourage watershed-based planning and compensatorymitigation.

The modification of GeneralCondition 15 is necessary to ensure thatthe use of more than one NWP toauthorize a single and complete projectdoes not result in more than minimaladverse effects on the aquaticenvironment, individually andcumulatively. The proposedmodification is not contrary to 33 CFR330.6(c) because that provision in theNWP regulations simply states that twoor more different NWPs can becombined to authorize a single andcomplete project. With the modificationof General Condition 15, we are notprohibiting the use of more than oneNWP to authorize a single and completeproject. Instead, we are simply imposing

an acreage limit based on the maximumspecified acreage limit of those NWPsused to authorize a single and completeproject. We do not agree that themodification of General Condition 15will encourage piecemealing ofactivities, since the definition of theterm ‘‘single and complete project’’ isclearly defined at 33 CFR 330.2(i) andthis definition has not changed. Themodification of this general condition isadopted as proposed.

16. Water supply intakes: In the July21, 1999, Federal Register notice, wedid not propose any changes to thisgeneral condition. One commenterobjected to this general condition,stating that it is too vague, excessive,and difficult to manage. Thiscommenter recommend that the Corpsrequire submission of a PCN when aproposed activity is within 1 mileupstream of a public water supplyintake.

District engineers will determinewhether an activity is subject to thisgeneral condition. Imposing anotification requirement based on adistance from an intake structure is notappropriate for a national condition, butdivision engineers can regionallycondition the NWPs to establish specificdistances from public water supplyintakes. This general condition isadopted without change.

17. Shellfish Beds: In the July 21,1999, Federal Register notice, weproposed to change the title of thisgeneral condition from ‘‘ShellfishProduction’’ to ‘‘Shellfish Beds.’’ Wealso proposed to change the phrase‘‘concentrated shellfish production’’ to‘‘concentrated shellfish populations’’because the word ‘‘production’’ impliesthat the general condition applies onlyto areas actively managed for shellfishproduction.

Two commenters recommended thatthe Corps change this general conditionfrom a prohibition against activities inareas of concentrated shellfishpopulations to a notificationrequirement when any proposed NWPactivity may cover concentratedshellfish populations. One commenterobjected to changing the title of thisgeneral condition from ‘‘ShellfishProduction’’ to ‘‘Shellfish Beds.’’ Thiscommenter also indicated that therestrictions imposed by this generalcondition are too broad.

With the exception of NWP 4, we donot agree that the NWPs shouldauthorize activities in concentratedshellfish beds. Changing the terms ofthis general condition from ‘‘shellfishproduction’’ to ‘‘shellfish beds’’ isnecessary to ensure that activitiesauthorized by NWPs result in minimal



adverse effects on the aquaticenvironment, especially in areas ofconcentrated shellfish populations thatmay be harvested for humanconsumption. The modification of thisgeneral condition is adopted asproposed.

18. Suitable Material: In the July 21,1999, Federal Register notice, we didnot propose any changes to this generalcondition, but one commenter requestedfurther definitions of suitable materialand debris that can be used.

We do not agree that it is necessaryto further define what constitutes‘‘suitable material’’ for the purposes ofthis general condition. It is impracticalto provide a comprehensive list ofunsuitable materials. If there arequestions concerning the suitability of aparticular material, the permittee shouldcontact the appropriate Corps districtoffice and ask if that material isconsidered suitable for the purposes ofGeneral Condition 18. This generalcondition is adopted without change.

19. Mitigation: In the July 21, 1999,Federal Register notice, we proposedseveral changes to this generalcondition. Several commentersrecommended combining the mitigationinformation in paragraph (g) of GeneralCondition 13 with this generalcondition. One commenter stated thatthis general condition is contrary to the1990 mitigation MOA. Numerouscommenters said that General Condition19 should specify that mitigation isrequired, to the maximum extentpracticable, in the same watershed asthe impact site.

We have combined the provisions ofparagraph (g) of General Condition 13with the provisions of GeneralCondition 19, so that the mitigationrequirements for the NWPs are inGeneral Condition 19. The 1990mitigation MOA applies only tostandard individual permits, not generalpermits such as the NWPs. Although weencourage permittees to locatecompensatory mitigation in the samewatershed as the site of the authorizedwork, there are occasions where it maybe necessary or more beneficial to theaquatic environment to implementcompensatory mitigation outside of thewatershed. For example, restoringwetlands in a degraded watershed tocompensate for losses of wetlands in awatershed with less impacts may bebetter for the overall aquaticenvironment.

One commenter suggested thatGeneral Condition 19 should contain aprovision that allows district engineersto determine that compensatorymitigation is unnecessary if the adverseeffects on the aquatic environment are

minimal without compensatorymitigation. Several commenters objectedto the phrase in the second sentence ofthe proposed modification of GeneralCondition 19 which states thatcompensatory mitigation is required‘‘l* * * at least to the extent thatadverse environmental effects to theaquatic environment are minimal.’’These commenters contend that thislanguage allows the Corps to requiremitigation in excess of the amountnecessary to offset the authorizedimpacts.

In accordance with the NWPregulations, district engineers candetermine that compensatory mitigationis not necessary to ensure that theauthorized work results in minimaladverse effects on the aquaticenvironment. District engineers willrequire only the amount ofcompensatory mitigation that is neededto ensure that the net adverse effects onthe aquatic environment are minimal,individually and cumulatively.

One commenter supported theinclusion of enhancement andpreservation in the definition ofcompensatory mitigation. Anothercommenter said that the definition ofmitigation should be expanded fromrestoration, creation, enhancement,preservation, and vegetated buffers toinclude avoiding, minimizing,rectifying, reducing, or compensatingfor losses of aquatic resources to makeit consistent with paragraph (g) ofGeneral Condition 13, which recognizesthis broader definition.

Since we have moved the provisionsof paragraph (g) of General Condition 13to General Condition 19, this generalcondition recognizes these types ofmitigation. Rectifying impacts to theaquatic environment is similar to theenhancement and restoration of aquaticresources. Reducing impacts to theaquatic environment is similar tominimization.

A number of commenters objected tothe removal of the phrase ‘‘unless theDistrict Engineer approves acompensation plan that the DistrictEngineer determines is more beneficialto the environment than on-siteminimization and avoidance measures’’which was in December 13, 1996,version of ‘‘Section 404 Only’’Condition 4, from which GeneralCondition 19 was derived. Thesecommenters stated that the removal ofthis language conflicts with some recentstatements by the Corps, includingpreferences for mitigation banks and inlieu fee programs. One commenterindicated that permittees should haveoptions for providing compensatorymitigation, including the ability to

utilize off-site compensatory mitigation(e.g., mitigation banks and in lieu feeprograms) and out-of-kindcompensatory mitigation (e.g., vegetatedbuffers next to open waters).

The modification of GeneralCondition 19 does not conflict with ourpreference for using consolidatedcompensatory mitigation methods tooffset losses of waters of the UnitedStates authorized by NWPs. GeneralCondition 19 simply states that thedistrict engineer will require, whennecessary, the restoration, creation,enhancement, or preservation of aquaticresources to ensure that the adverseeffects on the aquatic environment areminimal, individually andcumulatively. That compensatorymitigation can be provided byindividual compensatory mitigationprojects or consolidated mitigationmethods, such as mitigation banks.District engineers have flexibility todetermine the appropriate options forcompensatory mitigation on a case-by-case basis. For activities authorized byNWPs, the selected compensatorymitigation method should be based onwhat is best for the aquatic environmentand what is practicable for thepermittee.

One commenter recommendedmodifying the vegetated bufferrequirements in General Condition 19 toallow district engineers to waive theserequirements if it is impractical for thepermittee to establish and maintainvegetated buffers. Another commentersuggested that General Condition 19should be modified to place moreemphasis on on-site avoidance andminimization so that large scalemitigation such as vegetated bufferswould be required only in exceptionalcircumstances. Two commenters saidthat the text of General Condition 19should be rewritten to acknowledge thatNWPs authorize activities that haveminimal adverse effects on the aquaticenvironment and that most mitigationfor NWP activities would consist ofavoidance and small restorationprojects, not the large scale mitigationthat would result from establishing 50 to125 foot wide vegetated buffers. Onecommenter stated that GeneralCondition 19 does not contain specificrequirements for maintaining andprotecting vegetated buffers and askedhow the maintenance of vegetatedbuffers will be guaranteed. Onecommenter objected to requiringvegetated buffers to be comprised ofnative species, because it wouldnecessitate the removal of undesirablespecies in existing riparian buffers.

We have added the phrase ‘‘to themaximum extent practicable’’ to the



second sentence in paragraph (c) toclarify that vegetated buffers next toopen waters can be required ascompensatory mitigation only if such arequirement is practicable for theproject proponent. District engineerswill determine on a case-by-case basiswhether vegetated buffers are necessaryand the appropriate width of thosevegetated buffers. Recommended widthsof vegetated buffers are discussed in aprevious section of this Federal Registernotice. We have also added a provisionto General Condition 19 that limits theproportion of compensatory mitigationthat can be provided by vegetatedbuffers next to open waters. Ifcompensatory mitigation for wetlandimpacts is necessary to ensure that anNWP activity results in minimal adverseeffects on the aquatic environment andthere are open waters on the project site,any vegetated buffer will comprise nomore than 33% of the remainingcompensatory mitigation acreage afterthe permanently filled wetlands havebeen replaced on a one-to-one acreagebasis. Of course, many vegetated bufferswill be wetlands and can be included ascompensatory mitigation for wetlandimpacts.

Vegetated buffers are an alternatemethod of compensatory mitigation andshould be protected in the same manneras wetland compensatory mitigationsites (i.e., through deed restrictions,conservation easements, or otherappropriate legal means). The languageof General Condition 19 does notrequire the removal of non-native plantspecies from the area where thevegetated buffer will be established andmaintained. If the permittee is plantingthe vegetated buffer, he or she shoulduse native plant species. Vegetatedbuffer zones that are already establishedwith mature trees or shrubs can bemaintained without removing thoseplants to replace them with nativespecies. This general condition isadopted with the modificationsdiscussed above.

20. Spawning Areas: In the July 21,1999, Federal Register notice, weproposed to modify this generalcondition by adding the word‘‘important’’ before the phrase‘‘spawning areas.’’ The proposedmodification would limit this generalcondition to spawning areas used byspecies harvested commercially forhuman consumption.

One commenter objected using theword ‘‘important’’ in this generalcondition, stating that it ignores the factthat commercially harvested fish speciesoften rely on non-commercial speciesfor survival . Two commenters said thatthis general condition should apply to

all spawning areas. One commenterrecommended expanding the scope ofGeneral Condition 20 to spawning areasof importance to recreational fisheries.One commenter suggested that thephrase ‘‘important spawning areas’’should be replaced with ‘‘spawningareas that support Federally-listed orspecial status fish.’’ A commenter saidthat spawning areas that are importantfor state-listed endangered or threatenedspecies or ecologically important fishspecies can be addressed throughGeneral Condition 25, DesignatedCritical Resource Waters. Onecommenter requested that the Corpsprovide a definition of the term‘‘substantial’’ as it is used in the contextof this general condition because manyspecies of fish can tolerate highturbidity levels for short periods of time.

We maintain our position that theterms of this general condition shouldbe limited to spawning areas used byspecies that are harvested commerciallyfor human consumption. Divisionengineers can impose regional generalconditions to restrict or prohibitactivities in spawning areas used byother species. We cannot provide adefinition of the word ‘‘substantial’’ asit is used in the context of this generalcondition because it is more appropriateto make this determination on a case-by-case basis, depending on thecharacteristics of the project site and thespecies that may be affected. Thisgeneral condition is adopted asproposed.

21. Management of Water Flows: Inthe July 21, 1999, Federal Registernotice, we proposed to modify thisgeneral condition to require permitteesto maintain, to the maximum extentpracticable, preconstruction surfacewater flow patterns.

Three commenters supported theproposed modification of GeneralCondition 21. Several commentersobjected to the proposed modification.One commenter suggested that the textof the proposed modification should bewithdrawn and replaced with theoriginal language of ‘‘Section 404 Only’’Condition 6. A number of commentersstated that the Corps does not have thestatutory authority to impose therequirements of this general condition.Two commenters indicated that theproposed modification of GeneralCondition 21 is contrary to 33 CFR320.4(m). One commenter said that bestmanagement practices should berequired instead of this generalcondition. Numerous commenters statedthat the requirements of GeneralCondition 21 duplicate existing state orlocal programs. One commenterexpressed concern that this general

condition will impose requirements thatare contrary to local standards orwatershed plans. One commenter saidthat the requirements of this generalcondition will make the NWP programuseless because all dredge and fillactivities affect water flow.

We have statutory authority, throughsection 404 of the Clean Water Act, toimpose General Condition 21 becausethis general condition is necessary toensure that activities authorized byNWPs result in minimal adverse effectson the aquatic environment. Floodingand erosion that results from changes insurface water flows can have more thanminimal adverse effects on the aquaticenvironment. The requirements of thisgeneral condition are not contrary to 33CFR 320.4(m) because that section of theCorps regulations, which addresses theallocation of water supplies, isunrelated to the intent of GeneralCondition 21.

District engineers can refer to bestmanagement practices to assistpermittees in complying with thisgeneral condition, but we do not agreethat best management practices are moreefficient methods of achieving theobjectives of General Condition 21.Although the requirements of thisgeneral condition may duplicateexisting state or local programs, it isimportant to note that not all state andlocal governments address themanagement of water flows. Therefore,we believe that it is necessary toimpose, on a nationwide basis, therequirements of General Condition 21on activities authorized by NWPs. If thestate or local government adequatelyaddresses the management of surfacewater flows, the district engineer willdefer to those agencies. However, if thestate or local government does notadequately address the management ofwater flows, district engineers willdetermine if the proposed workcomplies with General Condition 21 andmay impose special conditions on theNWP to ensure that the authorized workresults in minimal adverse effects onsurface water flows. If the activity ispart of a larger system designed tomanage water flows, then activity-specific management of water flows isnot required. It is unlikely that thisgeneral condition will result inrequirements that are contrary towatershed plans, because the intent ofGeneral Condition 21 is to ensure thatactivities authorized by NWPs resultonly in minimal adverse effects on theaquatic environment.

Although most discharges of dredgedor fill material into waters of the UnitedStates authorized by NWPs alter surfacewater flow patterns, these changes are



usually minimal or could be mitigatedto the minimal adverse effect level andwould comply with General Condition21. If more than minimal changes tosurface water flows will occur as aresult of the proposed work, the activityshould be reviewed through theindividual permit process or the activityshould be modified with mitigation tocomply with General Condition 21.

Two commenters objected to theproposed modification, stating it is toosubjective. These commenters said thata lack of specific criteria will causeinconsistent and arbitraryimplementation. These commentersrequested specific criteria that willallow consistent determination ofcompliance. One commenter stated thatthe general condition should specify astorm event magnitude that will be usedto determine compliance, becauserequiring no change in water flows fora 2-year storm event is different thatrequiring no change in water flows fora 100-year storm event. A commenterrequested clarification whether thegeneral condition addresses streamflow, overland flow, and/or stormwaterflow. One commenter objected to theproposed modification of this generalcondition because it requires onlyqualitative analysis. Two commentersopposed the proposed modification ofGeneral Condition 21 because the Corpshas not explained how compliance willbe determined, specifically how pre-construction and post-constructionwater flows will be determined. Onecommenter recommended that theCorps adopt the guidelines at 23 CFRPart 650 (i.e., the Federal HighwayAdministration’s regulations concerningbridges, structures, and hydraulics) toaddress floodplain encroachments andprovide consistency for permitapplicants.

We do not agree that specific criteriashould be provided nationally, becauseof the large variability in hydrologicregimes and site conditions across thecountry. District engineers are bettersuited to establish local qualitativecriteria to determine compliance withthis general condition. As discussed inthe July 21, 1999, Federal Registernotice, this general condition applies togeneral surface water flow patterns overthe course of a year, not to anyparticular storm event. The types ofwater flows subject to this generalcondition include both stream flows andoverland flow. For example, this generalcondition prohibits the use of NWPs toauthorize activities that will redirectsubstantial amounts of surface water toadjoining property owners and morethan minimally increase the magnitudeof flooding on their property.

To determine compliance with thisgeneral condition, district engineers willrely on their judgement and knowledgeof local water flow patterns. Districtengineers will not require detailedhydrologic analyses or engineeringstudies.

Two commenters stated that requiringpermittees to maintain, to the maximumextent practicable, surface water flowsfrom the site is an impossible standardto meet, since such a requirementallows no change from pre-constructionwater flow conditions. Two commenterssaid that the phrase ‘‘to the maximumextent practicable’’ is an arbitrarythreshold and will result in disputesbetween the Corps and projectproponents with no mechanism forresolution.

The phrase ‘‘to the maximum extentpracticable’’ provides flexibility forpermittees to comply with therequirements of General Condition 21.This general condition does notestablish a ‘‘no effect’’ requirement forcompliance. It does not prohibit changesto surface water flows. GeneralCondition 21 merely requires that theactivity cause only minimal changes tosurface water flows and maintain thoseflows so that they are similar, notnecessarily identical, to preconstructionflow conditions. If changes to surfacewater flows will be more than minimal,the district engineer will either mitigatethose impacts, or if that is notpracticable, assert discretionaryauthority and require an individualpermit.

Several commenters said that theanalysis required to determinecompliance with General Condition 21is costly and burdensome on projectproponents and is inappropriate forNWP activities. One commenterrecommended that the text of thisgeneral condition include a statementrequiring district engineers to defer tostate and local agencies that haveadequate requirements to manage waterflows. A commenter suggested thatGeneral Condition 21 should bemodified to provide greater flexibilityfor flood control and stormwatermanagement activities, because thiswould allow permittees to demonstratethat changes in water flows comply withstate or local flood control standards orbenefit local hydrology or flow regimes.Another commenter recommended thatactivities authorized by NWPs shouldalso be designed to allow the movementof aquatic organisms or requiremitigation to maintain thosemovements.

Since district engineers will notrequire detailed hydrologic orengineering analyses, and must utilize

qualitative analyses to determinewhether or not a particular activitycomplies with this general condition,there will not be additional economicburdens on prospective permittees.Although district engineers should deferto state and local agencies if thoseagencies already impose adequaterequirements for maintaining surfacewater flows, we do not agree that it isnecessary to make this statement in thetext of General Condition 21. We believethat the text of General Condition 21provides adequate flexibility for floodcontrol and stormwater managementactivities because it requiresmaintenance of surface water flows tothe maximum extent practicable. Inaddition, this general condition does notprohibit the construction of facilitiesthat impound water, such as retentionor detention ponds, if the primarypurpose of the project is to impoundwater. General Condition 4, Aquatic LifeMovements, already addresses theissues raised by the last comment in theprevious paragraph.

In the text of General Condition 21,we have changed the word ‘‘project’’ to‘‘activity’’ to be consistent with theother general conditions, which refer toactivities. This general condition isadopted with the modificationdiscussed above.

23. Waterfowl Breeding Areas: In theJuly 21, 1999, Federal Register notice,we did not propose any changes to thisgeneral condition. One commenterrecommended expanding this generalcondition to include all wetland-dependent migratory bird species.

We do not agree with this comment,because the intent of this generalcondition is to ensure that the NWPs donot authorize activities that result inmore than minimal adverse effects towaterfowl, not all migratory bird speciesthat may utilize wetlands. This generalcondition is retained without change.

24. Removal of Temporary Fills: In theJuly 21, 1999, Federal Register notice,we did not propose any changes to thisgeneral condition. One commenterrequested clarification as to whatconstitutes a ‘‘temporary’’ fill byestablishing time limits. Anothercommenter said that certain temporaryfills, such as gravel, may be used byproject proponents and left in streambeds to enhance habitat for spawningfish species. This commenter suggestedthat the Corps modify this generalcondition to allow temporary fills toremain in waters of the United States ifthose fills are for a permit requirementof any other regulatory agency.

District engineers will determine, ona case-by-case basis, what constitutes atemporary fill. Fills that are left in



waters of the United States as acondition of permit issued by anotheragency must also be authorized bySection 404 of the Clean Water Act (andSection 10 of the Rivers and Harbors Actif the fill is in navigable waters). Thesefills may be authorized by NWPs,regional general permits, or individualpermits. This general condition isretained without change.

General Comments on ProposedGeneral Conditions 25, 26, and 27: Inthe July 21, 1999, Federal Registernotice, we proposed three new NWPgeneral conditions that would limit theuse of NWPs in designated criticalresource waters, impaired waters, andwaters of the United States within 100-year floodplains.

A number of commenters supportedthe three proposed NWP generalconditions. Many commenters objectedto the proposed general conditions,stating that there is no need for theserestrictions. Several commentersopposed these three general conditions,because they duplicate other programs.Several commenters stated that theproposed general conditions will notprovide any environmental benefits.Several commenters said that concernsfor critical resource waters, impairedwaters, and 100-year floodplains can beadequately addressed through the PCNprocess and the ability of districtengineers to exercise discretionaryauthority on those activities that willresult in more than minimal adverseeffects on the aquatic environment.Other commenters stated that regionalconditions would adequately addressthese issues.

After reviewing the commentsaddressing the three proposed NWPgeneral conditions, we have decided toadopt proposed General Condition 25,Designated Critical Resource Waters,and proposed General Condition 27,Fills Within the 100-year Floodplain.We have decided to withdraw proposedGeneral Condition 26, Impaired Waters.Proposed General Condition 27 has beensubstantially modified, as discussedbelow. This general condition has beendesignated as General Condition 26,Fills Within 100-year Floodplains. Thenew general conditions, in conjunctionwith the 1/2 acre limit for most of thenew NWPs, will provide substantialenvironmental benefits. We do not agreethat regional conditions are a bettermechanism to address these issues,since the new general conditionsaddress issues of national concern.

Several commenters said that theproposed new NWP general conditionswill substantially reduce the regulatedpublic’s ability to efficiently obtainauthorization for activities that have

minimal adverse effects on the aquaticenvironment. Two of these commentersremarked that it will be more difficultto obtain authorization for maintenanceactivities. Several commenters statedthat the proposed general conditionsreplace the ‘‘minimal adverse effect’’criterion of the NWPs with a ‘‘no effect’’criterion. Numerous commentersasserted that the assumption thatactivities in designated critical resourcewaters, impaired waters, and 100-yearfloodplains will result in more thanminimal adverse effects on the aquaticenvironment is incorrect. Thesecommenters said that many activitiesauthorized by NWPs in these areas mayactually improve water quality orprovide essential public health andsafety functions.

The two new NWP general conditionswill not make it more difficult to obtainauthorization for maintenance activities.Many maintenance activities are eligiblefor the Section 404(f) exemptions. NWP3 activities in designated criticalresource waters require notification tothe district engineer but may beauthorized. General Condition 26 doesnot restrict NWP 3 or NWP 31 activitiesin 100-year floodplains. The intent ofthe new general conditions is to ensurethat the NWPs comply with thestatutory requirements of Section 404(e)of the Clean Water Act. Although theseconditions will limit the use of NWPs incertain waters, activities in these watersmay be authorized by other forms of DApermits, such as regional generalpermits or standard permits.

One commenter stated that theproposed general conditions arecontrary to the Corps goal of focusing itslimited resources on those activitieswith the potential for greaterenvironmental impacts. Twocommenters said that withoutadditional resources to implement andenforce the three proposed generalconditions, there will be a decrease inenvironmental protection. One of thesecommenters said that these generalconditions are too confusing anddifficult to enforce. Two commentersobjected to these general conditionsbecause they substantially reduce thegeographic area in which the NWPs canbe used. One commenter stated that theproposed general conditions improperlychange the focus of the NWPs from thetype of activity to the location of theactivity. Another commenter said thatthe proposed general conditions areconfusing because of specificinconsistencies, such as the impositionof an acreage limit in proposed GeneralCondition 26 without similar acreagelimits in proposed General Conditions25 and 27 or the different applicability

of these general conditions for specificNWPs. For example, NWP 39 cannot beused in the 100-year floodplain but itcan be used to authorize discharges offill material into impaired waters andadjacent wetlands.

We agree that the proposed generalconditions may have resulted in adecrease in environmental protection.However, the changes we have madewill ensure that the conditions willsubstantially increase protection of theaquatic environment. General Condition25 restricts the use of NWPs in highvalue waters, which is analogous to theincreased emphasis on regionalconditioning we placed on the proposednew and modified NWPs. GeneralCondition 26 will minimize adverseeffects to the flood-holding capacity of100-year floodplains, as well as enhanceprotection of free-flowing streams in theregulated floodway. Although the twonew NWP general conditions reduce thegeographic scope of the NWPs, theseconditions are necessary to ensure thatthe NWPs do not authorize activitieswith more than minimal adverse effectson the aquatic environment. Thelocation of a waterbody or wetland hasa substantial influence on the functionsand values it provides. For example, awetland within a 100-year floodplainmay provide fish spawning habitat thatis not provided by an isolated wetland.The differences in the requirementsbetween the two general conditions arenecessary because each of theseconditions addresses different issues.Therefore, each of the new NWP generalconditions requires different restrictionsor limitations to ensure that the NWPsauthorize activities with minimaladverse effects on the aquaticenvironment.

25. Designated Critical ResourceWaters: In the July 21, 1999, FederalRegister notice, we proposed a newgeneral condition that would limit theuse of certain NWPs in designatedcritical resource waters.

Many commenters expressed theirsupport for the proposed generalcondition. A number of commentersopposed this general condition. Onecommenter said that General Condition25 will severely restrict the NWPprogram and make it unusable. Somecommenters stated that NWPs shouldnot authorize activities in designatedcritical resource waters.

Numerous commenters said theproposed general condition is based onan invalid assumption that alldischarges of dredged or fill materialinto designated critical resource waterswill always jeopardize any essentialfunctions that make these waters highvalue. These commenters stated that



this assumption is invalid because theNWPs authorize activities with minimaladverse effects on the aquaticenvironment. One commenter said thatthis general condition imposes a ‘‘noeffect’’ standard instead of a ‘‘minimaleffect’’ standard. Many commenterssuggested that protection of designatedcritical resource waters is moreeffectively provided through regionalconditions imposed by divisionengineers and the PCN process. ThePCN process allows district engineers toadd special conditions to NWPauthorizations or exercise discretionaryauthority to require individual permitsfor activities that result in more thanminimal adverse effects on the aquaticenvironment.

General Condition 25 does notprohibit the use of all NWPs indesignated critical resource waters oradjacent wetlands. Only those NWPactivities that are likely to result in morethan minimal adverse effects ondesignated critical resource waters arerestricted by General Condition 25.Although regional conditions and thePCN process may have fully protecteddesignated critical resource waters, webelieve that for the waters listednationwide restrictions are appropriate.We believe that a national condition isnecessary for certain categories ofwaters.

One commenter said that NOAA-designated marine sanctuaries should besubject to the same restrictions thatGeneral Condition 7 imposes onactivities in Wild and Scenic Rivers.This commenter stated that the use ofNWPs should be allowed if thoseactivities are approved by the agencymanaging those sanctuaries. Thiscommenter also said that NationalEstuarine Research Reserves do notrequire extra protection through GeneralCondition 25 because they are alreadyprotected by coastal states and NOAA.

We do not agree that NOAA-designated marine sanctuaries should besubject to the same restrictions as Wildand Scenic Rivers. We believe that thelisted NWPs would likely result in morethan minimal adverse effects to theseimportant waters. We believe thatrestricting the use of certain NWPs inNational Estuarine Research Reserves isnecessary.

Many commenters stated that existingGeneral Condition 7 provides adequateprotection for Wild and Scenic Rivers,and recommended the removal of Wildand Scenic Rivers from the list ofdesignated critical resource waters inGeneral Condition 25. Severalcommenters opposed the inclusion ofcritical habitat for Federally-listedendangered or threatened species as

designated critical resource waters,stating that General Condition 11already provides sufficient protectionfor these areas. Numerous commentersobjected to the provision in GeneralCondition 25 that requires concurrencefrom the U.S. FWS or NMFS that theproposed work complies with GeneralCondition 11. One of these commenterssaid that this provision is contrary to theEndangered Species Act (ESA), whichrequires consultation only for thoseactivities that adversely affect Federally-listed endangered or threatened speciesor their critical habitat. Twocommenters indicated that thisprovision inappropriately shifts theresponsibility for determining effects onendangered or threatened species fromthe Corps to the U.S. FWS or NMFS.One commenter said that this provisionis not strong enough.

General Condition 25 merely statesthat activities involving discharges ofdredged or fill material into Wild andScenic Rivers must comply withGeneral Condition 7. This generalcondition does not impose anyadditional restrictions on NWPactivities in Wild and Scenic Rivers. Webelieve that the provisions concerningdesignated critical habitat for Federally-listed endangered or threatened speciesin General Condition 25 are necessary toensure compliance with ESA. Moreover,we believe that designated criticalhabitat deserves the highest level ofprotection, thus for the NWPs listed, wewill seek the concurrence of the FWS toensure protection.

One commenter recommended theremoval of state natural heritage sitesfrom the list of designated criticalresource waters. Another commentersaid that General Condition 25 willprohibit the use of many NWPs incertain counties, since some statenatural heritage sites encompass entirecounties. One commenter requestedclarification as to what constitutes a‘‘state natural heritage site.’’

We are maintaining state naturalheritage sites in the list of designatedcritical resource waters because theseareas typically contain high valuewaters. A state natural heritage site hasbeen designated, through a statelegislative or regulatory process, as anarea that warrants additional protectiondue to its natural resourcecharacteristics. Therefore, we believethat authorizing projects under NWPswould likely result in more thanminimal adverse effects on the aquaticenvironment.

One commenter objected to includingoutstanding national resource waters inthe list of designated critical resourcewaters. This commenter said that this

general condition should be limited towaters that are defined by Federalstandards, not state standards, becausethere is a need for consistency acrossstate boundaries. Two commenters saidthat outstanding national resourcewaters already receive specialprotection from states through anexisting program. These commenterscited EPA’s regulations at 40 CFR131.12(a)(3). Three commenterssupported the requirement for thelegislature or governor to designatewaters with particular environmental orecological significance. Threecommenters said that other state or localofficials should be able to designatewaters with environmental or ecologicalsignificance that should be subject tothis general condition.

We believe that outstanding nationalresource waters should be subject to theprovisions of General Condition 25,because these waters are typically highvalue waters. We maintain our positionthat outstanding national resourcewaters must be officially designated bythe state as having particularenvironmental or ecologicalsignificance. To be subject to GeneralCondition 25, those outstandingnational resource waters must beidentified and approved by the districtengineer after public notice andopportunity for comment. We do notagree that state or local officials shouldbe able to designate additional watersthat will be subject to General Condition25, without the district engineerproviding an opportunity for publicnotice and comment.

Three commenters supportedallowing district engineers to includeadditional waters after public notice andopportunity for comment. Severalcommenters opposed this mechanism,because it would provide no additionalprotection since these waters are alreadyprotected by state and localgovernments. Two commentersindicated that waters identified byFederal and state agencies as designatedcritical resource waters should besubject to a public review process. Twocommenters stated that the use of theword ‘‘include’’ in the first sentence ofGeneral Condition 25 implies that thereare other waters that are considered tobe designated critical resource watersand subject to this general condition. Acommenter requested clarification as towhat constitutes an official designationas having particular environmental orecological significance. This commentersaid that public notice at the districtlevel should be adequate to make thisdesignation.

We have modified General Condition25 to explicitly state that district



engineers can designate additionalcritical resource waters after notice andopportunity for public comment. Thisprocess is similar to the NWP regionalconditioning process whereby districtengineers would identify high valuewaters that should be subject to NWPrestrictions. Waters having particularenvironmental or ecological significanceshould be designated by the governor orlegislature, and the district engineer candesignate these waters as criticalresource waters for the purposes ofGeneral Condition 25, after publicnotice and opportunity for comment. Incontrast to the regional conditioningprocess, the district engineer wouldapprove any additional critical resourcewaters for the purposes of GeneralCondition 25.

One commenter asked why wetlandsadjacent to designated critical resourcewaters are included in GeneralCondition 25. Several commentersrecommended that the Corps replace theword ‘‘adjacent’’ with ‘‘contiguous’’ toclarify the geographic scope of thisgeneral condition and make it easier toimplement. One commenter stated thatadjacent wetlands are not clearlydefined for the purposes of this generalcondition. Another commenterremarked that waters adjacent todesignated critical habitat are notsubject to the same ESA requirements asdesignated critical habitat and shouldnot be treated as such.

Wetlands adjacent to designatedcritical resource waters are included inGeneral Condition 25 because thesewetlands can have substantialinfluences on the quality of thesewaters. We believe that this is true forall critical resource waters, includingdesignated critical habitat forendangered species. For the purposes ofthis general condition, the definitionterm ‘‘adjacent’’ is the same as thedefinition at 33 CFR 328.3(c).

Several commenters requested thatthe Corps define what constitutes an‘‘effect’’ to a designated critical resourcewater. Two commenters indicated that itis difficult for the public to know whichwaters are subject to General Condition25 because that information is notreadily available and the list ofapplicable waters can changefrequently. Several commenterssuggested that the Corps produce mapsof designated critical resource watersand subject those maps to a publiccomment process.

For the purpose of General Condition25, the term ‘‘directly affecting’’ refers toactivities involving discharges ofdredged or fill material into waters ofthe United States. Prospectivepermittees should contact the

appropriate Corps district to determineif any designated critical resourcewaters occur in the vicinity of theproposed work. Corps districts canproduce maps of designated criticalresource waters to aid in theimplementation of this generalcondition, but such maps are notrequired.

Several commenters said that statescan restrict the use of NWPs in certainwaterbodies through the Section 401water quality certification process andthat state-designated waters should notbe subject to General Condition 25.Another commenter stated that theCorps should not restrict discharges intodesignated critical resource waters ifother Federal or state agencies have notimposed restrictions on those waters.

We believe that the provisions inGeneral Condition 25 are necessary toensure that the NWPs only authorizeactivities with minimal adverse effectson the aquatic environment,individually or cumulatively. OtherFederal and state agencies may not havethe regulatory authority to restrict orprohibit discharges of dredged or fillmaterial into designated criticalresource waters. Therefore, it isappropriate for the Corps to imposesuch restrictions, since such dischargesare regulated by the Corps underSection 404 of the Clean Water Act.

One commenter recommended addingNWP 13 to the list of NWPs that areprohibited in this general condition.Another commenter suggested that NWP8 should be added to the list of NWPsthat cannot be used in designatedcritical resource waters. Manycommenters objected to the inclusion ofmaintenance activities (e.g., NWPs 3and 31) in General Condition 25 becausethese activities have minimal adverseeffects on the aquatic environment anddelaying the authorization of theseactivities is unsafe and contrary to thepublic interest. Some commenterssuggested removing NWPs 7 and 43from the list of prohibited activities.Many commenters said that NWPs 12and 14 should not be restricted in thesewaters. Some of these commentersstated that submission of a PCN to thedistrict engineer is adequate to ensurethat the work results in minimal adverseeffects on the aquatic environment. Twocommenters said that NWP 25 shouldnot be subject to this general condition.A commenter stated that NWP 35should be included in the list of NWPsthat require notification. Thiscommenter also indicated that it isunnecessary to require a PCN foractivities authorized by NWPs 22, 27,30, and 37.

We do not agree that NWPs 13 or 8should be added to the list of NWPs inparagraph (a) of General Condition 25.NWP 3 activities can occur indesignated critical resource waters,provided those activities result inminimal adverse effects on the aquaticenvironment. The maintenance of floodcontrol facilities constructed indesignated critical resource waterscould result in more than minimaladverse effects on the aquaticenvironment, and should be reviewedthrough other DA permit processes. Wecontinue to believe that NWPs 7, 12, 14,35, and 43 should be subject to therestrictions in paragraph (a). We do notagree that the PCN process is a moreeffective mechanism to review activitiesin designated critical resource waters.We believe that the activities authorizedby NWPs 22, 25, 27, 30, and 37, shouldbe reviewed on a case-by-case basis ifthey are located in designated criticalresource waters or adjacent wetlands.

Many commenters suggestedadditional waters that should beincluded in the list of designated criticalresource waters. Numerous commentersrecommended groundwater rechargeareas and sources of drinking water asdesignated critical resource waters.Other suggested waters include: primarynursery areas and shellfish waters;streams that support cold waterfisheries; areas used by migratory birds;waters of the United States inwilderness areas, national parks, andwildlife refuges; areas identified by statenatural heritage programs as supportinghigh concentrations of rare species;vernal pools; stream segments andwaterbodies proposed for listing undersection 303(d) of the Clean Water Act;waters supporting salmonid fisheries;and wetlands that are rare and difficultto replace, such as peatlands, potholes,vernal marshes, playas, kettles, highaltitude wetlands, and mature forestedwetlands.

Concerns regarding these waters aremore effectively addressed throughother processes, such as regionalconditioning of the NWPs or case-specific review of PCNs. Divisionengineers can regionally condition theNWPs to prohibit or limit their use insuch high value waters. Districtengineers will exercise discretionaryauthority and require individual permitsif activities proposed in designatedcritical resource waters will result inmore than minimal adverse effects onthe aquatic environment. ProposedGeneral Condition 25 is adopted withthe modifications discussed above.

26. Impaired Waters: In the July 21,1999, Federal Register notice, weproposed a new general condition that



would limit the use of NWPs inwaterbodies that are identified asimpaired through the Clean Water ActSection 303(d) process. The sources ofimpairment considered for the proposedgeneral condition were: nutrients,organic enrichment resulting in lowdissolved oxygen concentration in thewater column, sedimentation andsiltation, habitat alteration, suspendedsolids, flow alteration, turbidity, or theloss of wetlands. The proposedlimitation would also apply to wetlandsadjacent to the impaired waterbody.

Many commenters supported theproposed General Condition 26 andmany commenters opposed thisproposed general condition. Numerouscommenters said that the NWPs shouldnot authorize activities in impairedwaterbodies. A large number ofcommenters supported theidentification of impaired watersthrough the Clean Water Act Section303(d) process. One commentersupported the exclusion of NWP 3 fromthe 1 acre limit imposed by GeneralCondition 26. Two commenters statedthat the limitations in this generalcondition should apply to all wetlandsin the watershed or sub-basin, not onlyto those wetlands that are adjacent tothe impaired waters.

Those commenters that expressedopposition to the proposed generalcondition stated that the limitations inGeneral Condition 26 are unnecessaryand would provide no benefits for theenvironment. Many commentersobjected to the proposed generalcondition because they believe thatactivities in waters of the United Statesmay have no effect on the actual causeof impairment. Numerous commentersobjected to the presumption in proposedGeneral Condition 26 that NWPactivities would result in furtherimpairment of waterbodies. Somecommenters indicated that certain NWPactivities improve water quality. Forexample, these commenters said thatNWPs can authorize activities thatstabilize eroding stream banks, improvefish passage, improve the quality ofhighway runoff, or decrease peak flows.Several commenters believe that theCorps lacks the legal authority toimpose this general condition. Onecommenter said that General Condition26 is unnecessary because the quality ofwaters is improving. Severalcommenters stated that the limitationsof General Condition 26 place morevalue on impaired waters thanunimpaired waters. Two commentersindicated that the requirements of thisgeneral condition make permitteesresponsible for mitigating impacts towater quality that they did not cause.

Many commenters recommendedusing the PCN process and discretionaryauthority to address impacts to impairedwaters, instead of utilizing aprohibition. A number of commenterssaid that the NWPs should be used toauthorize discharges of dredged or fillmaterial into impaired waters andadjacent wetlands if the adverse effectson the aquatic environment areminimal. Two commenters stated thatthe criterion of ‘‘no further impairment’’imposes a ‘‘no adverse effect’’ standardon the NWPs, not a ‘‘minimal adverseeffect’’ standard. Several commenterssaid that the limitations imposed byproposed General Condition 26 offsetthe utility of regional conditions. Anumber of commenters objected to the1 acre limit imposed by the proposedgeneral condition. Two commenterssaid that the 1 acre limit is arbitrary andviolates the Administrative ProceduresAct because the Corps provided nojustification that this limit is necessary.One commenter stated that the acreagelimit should be in the text of the NWPs,not the general condition.

A large number of commentersobjected to this proposed generalcondition because it is duplicative ofexisting programs, such as the Section401 water quality certification orNational Pollutant DischargeElimination System programs. Twocommenters stated that the issuance ofa water quality certification by the stateor Tribe should be adequate to ensurethat the use of the NWP is consistentwith water quality standards. Severalcommenters asserted that states are bestsuited to determine which actions arenecessary to address causes ofimpairment, allocate pollutant loads,and protect water quality, and that theCorps should defer these matters to thestates. Two commenters said that theproposed general condition isredundant with General Condition 9.

Several commenters objected to theuse of Clean Water Act Section 303(d)lists to identify impaired waters. Acommenter objected to the provisions ofproposed General Condition 26 becauseEPA is currently proposing to revise itsregulations for the Total MaximumDaily Load (TMDL) program, uponwhich the limitations of the proposedgeneral condition are based. Thiscommenter also opposed the proposedgeneral condition because state Section303(d) lists are constantly changing andnot all state lists are available at thesame time. One commenter requestedclarification whether the TMDL programis the same as the Section 303(d)program for identifying impairedwaters. Another commenter asked howthe Corps will be able to enforce this

general condition when water qualitystandards may vary from year to yearand the Section 303(d) status ofindividual stream segments may change.Two commenters objected to theproposed general condition because ofthe subjective criteria used to identifiedimpaired waters on 303(d) lists.

Several commenters objected tomaking the prospective permitteeresponsible for demonstrating that theproposed work will not result in furtherimpairment of the waterbody. Manycommenters opposed this generalcondition because it does not explainhow the prospective permittee can rebutthe presumption and what informationis needed to make the rebuttal. Severalcommenters indicated that, in manycases, it will be impossible to rebut thepresumption in General Condition 26and in other cases much time andmoney would be required to rebut thepresumption. One commenter suggestedthat the prospective permittee should berequired to provide documentation tothe district engineer instead ofdemonstrating that the activity will notresult in further impairment of thewaterbody.

Several commenters asserted thatpermittees should be allowed to usecompensatory mitigation to ensure thatthe authorized work will not result infurther impairment of the waterbody.Two commenters said that theprohibition against using compensatorymitigation to ensure no furtherimpairment of the waterbody is contraryto General Condition 19 and the lastsentence of paragraph (b) of theproposed General Condition. Onecommenter requested clarificationwhether the term ‘‘excludingmitigation’’ refers to compensatorymitigation. This commenter also askedif avoidance and minimization could beused as documentation that the activitywill not cause further impairment of thewaterbody.

Three commenters asked if tributariesof impaired waters are also consideredimpaired and subject to proposedGeneral Condition 26. Severalcommenters requested clarificationwhether wetlands adjacent to animpaired waterbody are considered partof that waterbody and subject to the 1acre limit. One commenter questionedwhether the proposed general conditionis applied on a watershed or streamreach basis.

Several commenters objected to theinclusion of adjacent wetlands inproposed General Condition 26 becausethe definition of adjacency is too vagueand those wetlands may not have directhydrologic connections to thewaterbody. Three commenters requested



a definition of the term ‘‘adjacent’’ as itapplies to this general condition. Twocommenters said that the generalcondition should be limited to theimpaired waterbody and wetlands withdemonstrable hydrologic connections tothe impaired waterbody. Onecommenter recommended that theCorps replace the term ‘‘adjacent’’ with‘‘contiguous’’ in this general condition.This commenter also said that, for thepurposes of this general condition,adjacent wetlands should not includewetlands downstream of the impairedwaterbody. Another commenter saidthat identifying adjacent wetlands isproblematic since impaired waters areidentified by segments. This commenterrequested guidance on how to identifywetlands that are adjacent to impairedstream segments.

Two commenters said that thisgeneral condition should be included inGeneral Condition 25 because impairedwaters warrant the same protection asdesignated critical resource waters.Another commenter said that proposedGeneral Condition 26 should not applyto waters where TMDL water qualitymanagement plans have beenimplemented. Two commenters saidthat this general condition should notapply to activities that do not result indischarges of the listed pollutant.

One commenter requestedclarification whether proposed GeneralCondition 26 applies only towaterbodies that are impaired as a resultof the causes listed in the text of theproposed general condition or if othersources of impairment are applicable.Two commenters said that the proposedgeneral condition should apply only towaterbodies that are impaired as a resultof the loss of wetlands. Manycommenters recommended additionalcriteria to identify waters that should besubject to this general condition.Suggested criteria include: (1)watersheds that have lost more than50% of their original wetlands; (2) lossof riparian vegetation that results ingreater fluctuations in watertemperature; (3) waters identified asimpaired through EPA’s Index ofWatershed Indicators; (4) all watersidentified as impaired through theSection 303(d) process; (5) pollutantslisted in section 502(6) of the CleanWater Act; (6) waters impaired byhydrological and habitat modification;and (7) waters impaired by pesticidesand pathogens.

A number of commenters suggestedspecific NWPs that should not besubject to proposed General Condition26. Many commenters said that NWP 3activities should not be subject to theproposed general condition, because it

would result in delays for maintenanceactivities that have minimal adverseeffects on the aquatic environment andare not likely to result in furtherimpairment of these waterbodies. Onecommenter stated that NWP activitiesthat enhance or restore waters, arenecessary for public health and safety,or authorize maintenance activities,should not be subject to the proposedgeneral condition. Various commentersrecommended that NWPs 12, 13, 14, 31,and 33 should not be subject toproposed General Condition 26. Onecommenter said that the proposedgeneral condition should not apply toNWPs 3, 13, 27, 41, 42, and 43 becausethe activities authorized by these NWPsusually improve water quality. MostNWPs were recommended for exclusionfrom the proposed general condition.

After considering the commentsreceived in response to the July 21,1999, Federal Register notice, wedetermined that General Condition 26should be withdrawn. We believe thatthe 1/2 acre limit and the 1/10 acre PCNlimit on the new and modified NWPswill ensure that the adverse effects areno more than minimal. We also agreewith the commenters who stated thatthe limitation would yield limited, ifany, value added for the aquaticenvironment. We agree that in manycases mitigated NWPs will actuallyimprove the status of the aquaticenvironment. Finally, we believe thatimpacts to impaired waters are moreappropriately addressed through theSection 401 water quality certificationprocess.

27. Fills Within 100-year Floodplains:We proposed, in the July 21, 1999,Federal Register notice, to add a newgeneral condition to the NWPs thatwould limit the use of certain NWPs inwaters of the United States within all100-year floodplains.

We received many commentssupporting or opposing proposedGeneral Condition 27. A large number ofcommenters said that this generalcondition should include drainageactivities in 100-year floodplains.Several commenters recommendedexpanding the scope of the proposedgeneral condition to include excavationactivities in 100-year floodplains. Manycommenters stated that the proposedgeneral condition should be expandedto prohibit all fills in 100-yearfloodplains. Some commentersexpressed concern that the proposedgeneral condition does not addressincreases in flooding caused by streamchannelization activities. Onecommenter supported proposed GeneralCondition 27 because it will provide

protection of essential fish habitat andanadromous fish species.

Many commenters opposed proposedGeneral Condition 27, stating that itwould provide few benefits and that itwill increase delays and costs for theregulated public. A number ofcommenters contend that therequirements of the proposed generalcondition are outside of the scope of theCorps regulatory authority. Manycommenters stated that therequirements of proposed GeneralCondition 27 imply that the Corps isexpanding its regulatory authority to theentire 100-year floodplain. Severalcommenters objected to the provisionsof this general condition because itduplicates the requirements of othergovernment agencies, especially stateand local flood protection regulationsand ordinances, as well as the NationalFlood Insurance Program (NFIP) of theFederal Emergency Management Agency(FEMA). One commenter said thatGeneral Condition 27 is contrary to theAdministration’s initiatives thatencourage reuse of brownfields, becausemost brownfields are located within100-year floodplains in urban areas.

As a result of our review of thecomments received in response to theJuly 21, 1999, Federal Register notice,we have modified proposed GeneralCondition 27 and designated it asGeneral Condition 26, Fills Within 100-year Floodplains. The revised generalcondition prohibits the use of NWPs 29,39, 40, 42, 43, and 44 to authorizedischarges of dredged or fill materialinto waters of the United States thatresult in permanent, above-grade fillswithin the FEMA-mapped 100-yearfloodplain of streams below theheadwaters. NWPs 12 and 14 can beused to authorize discharges of dredgedor fill material resulting in permanent,above-grade fills within the 100-yearfloodplain of streams below headwaters,provided the permittee notifies thedistrict engineer in accordance withGeneral Condition 13 and the activitycomplies with FEMA or FEMA-approved local floodplain constructionrequirements.

In flood fringes of FEMA-mapped100-year floodplains located withinheadwater streams, NWPs 12, 14, 29, 39,40, 42, 43, and 44 can be used toauthorize permanent, above grade fillsin waters of the United States, providedthe prospective permittee notifies thedistrict engineer in accordance withGeneral Condition 13 and providesdocumentation demonstrating that theproposed work complies with FEMA orFEMA-approved local floodplainconstruction requirements. In FEMA-designated floodways of 100-year



floodplains located within headwaterstreams, NWPs 29, 39, 40, 42, 43, and44 cannot be used to authorizepermanent, above-grade fills in watersof the United States. However, NWPs 12and 14 can be used to authorizepermanent, above-grade fills in watersof the United States within floodways ofFEMA-designated 100-year floodplainslocated within headwater streams,provided the prospective permitteenotifies the district engineer inaccordance with General Condition 13and provides documentationdemonstrating that the activity complieswith FEMA or FEMA-approved localfloodplain construction requirements.We believe that these changes,combined with the 1/2 acre maximumacreage limit and 1/10 acre PCNthreshold, will ensure protection of thefunctions and values of floodplains.Definitions of the terms ‘‘flood fringe’’and ‘‘floodway’’ are found at 44 CFR9.4.

We do not agree that this generalcondition should be extended todrainage and excavation activitieswithin 100-year floodplains, since theseactivities do not have substantialadverse effects on the flood-holdingcapacity of 100-year floodplains. Streamchannelization activities authorized byNWPs are subject to General Condition21, which prohibits substantial changesto surface water flow patterns, includingdownstream flooding. Streamchannelization projects are constructedto improve conveyance of water, whichmay decrease local flooding.

It is important to note that therequirements of this general conditionare not a surrogate for the requisite andseparate determination by the Corps ofminimal adverse effects on the aquaticenvironment that is required for allNWPs. District engineers will exercisediscretionary authority if proposeddischarges of dredged or fill materialinto waters of the United States within100-year floodplains will result in morethan minimal adverse effects (afterconsideration of mitigation measures)on the aquatic environment.

We do not believe that the modifiedversion of this general condition willunreasonably increase costs for theregulated public. NWP 26 authorizedonly discharges of dredged or fillmaterial in headwaters and isolatedwaters and the modified conditionallows the use of NWPs in the floodfringe of the headwaters. The Corpsstudy of the economic and workloadimplications of the proposed NWPsindicates that the revised approach willcost the regulated public roughly one-half the amount the proposal in the July21, 1999, Federal Register would cost.

Moreover, we believe that themodifications we have made willactually enhance protection of theaquatic environment. To participate inthe NFIP, the permittee must complywith FEMA or FEMA-approved localfloodplain construction requirements,which will not impose additional costs.The requirements of this generalcondition are not an attempt to, and donot, expand the Corps regulatoryjurisdiction to areas outside of waters ofthe United States.

Two commenters stated that thecurrent NWP program complies withExecutive Order (E.O.) 11988,Floodplain Management. One of thesecommenters said that requiringindividual permits for the activitiesprohibited by the proposed generalcondition is not considered apracticable alternative in the context ofE.O. 11988, because it is impractical torequire individual permits for allactivities in 100-year floodplains.

We concur that the NWP programfully complies with E.O. 11988,including the ‘‘Floodplain ManagementGuidelines for Implementing E.O.11988’’ issued by the U.S. WaterResources Council and ‘‘Further Adviceon Executive Order 11988 FloodplainManagement’’ issued by the InteragencyTask Force on Floodplain Management.‘‘Further Advice on Executive Order11988 Floodplain Management’’ statesthat class review of repetitive actionsproposed in 100-year floodplains can beconducted in full compliance with E.O.11988. The NWPs clearly fall within thecategory of class review of repetitiveactions.

Several commenters indicated thatrequiring individual permits foractivities in 100-year floodplains willnot provide any benefits becauseindividual permits will be issued withlittle or no change from the proposedwork. These commenters said that it islikely that the Corps will rely on theNFIP standards when assessing impactson 100-year floodplains. Twocommenters said that the requirementsof proposed General Condition 27 willremove incentives for projectproponents to design their activities tohave minimal adverse effects to qualifyfor NWP authorization. Thesecommenters believe that projectproponents will design larger activitieswith greater environmental impactswhen required to request individualpermits. One commenter said that theNWPs should authorize fills that resultin the loss of less than 2 acres of watersof the United States in 100-yearfloodplains.

Several commenters stated that therequirements of proposed General

Condition 27 should not be morerestrictive than FEMA regulations.Numerous commenters indicated thatthe proposed general condition iscontrary to FEMA regulations, whichallow fills in the flood fringe of 100-yearfloodplains. One commenter said thatthe proposed general condition shouldbe modified to allow the NWPs toauthorize activities that comply withNFIP construction standards. Onecommenter said that proposed GeneralCondition 27 should not apply in areaswith FEMA-certified floodplainmanagement programs in place, wherethe activity has been approved by thelocal floodplain management agency.

We agree with these comments andhave modified this general condition sothat the NWPs can be used to authorizeactivities within flood fringes of 100-year floodplains within headwaterstreams, provided those activitiescomply with FEMA or FEMA-approvedlocal floodplain constructionrequirements and result in minimaladverse effects on the aquaticenvironment. We do not agree that thereshould be a 2 acre limit for dischargesof dredged or fill material into waters ofthe United States within 100-yearfloodplains. The 1/2 acre limit for mostof the new NWPs will allow the NWPprogram to continue to provide astreamlined authorization process foractivities with minimal adverse effectson the aquatic environment.

A large number of commenters statedthat proposed General Condition 27 willimpose additional requirements on localfloodplain authorities that will increasetheir workload. For example, theproposed general condition requiredlocal floodplain authorities to determinethe extent of 100-year floodplains,determine whether a proposed activityis outside of the 100-year floodplain,and provide documentation that theproposed work will not decrease theflood-holding capacity of the 100-yearfloodplain.

We agree with these concerns, butbelieve that the revised generalcondition will not impose suchadditional workload requirements onlocal floodplain authorities.

Many commenters contend that theprohibitions in proposed GeneralCondition 27 are not necessary becausethe NWPs authorize only activities withminimal adverse effects on the aquaticenvironment, including floodplains.Several commenters noted that theterms of proposed General Condition 27impose a ‘‘no effect’’ standard on theNWPs instead of a ‘‘minimal adverseeffect’’ standard.

We agree with these comments. Therevised general condition does not



prohibit the use of NWPs 29, 39, 40, 42,43, and 44 to authorize discharges ofdredged or fill material into waters ofthe United States within flood fringes of100-year floodplains within headwaterstreams, provided the proposed workcomplies with FEMA or FEMA-approved local floodplain constructionrequirements and results in minimaladverse effects on the aquaticenvironment. NWPs 12 and 14 can beused to authorize activities in all non-tidal 100-year floodplains, providedthose activities comply with FEMA orFEMA-approved local floodplainconstruction requirements and result inminimal adverse effects on the aquaticenvironment.

Numerous commenters objected tothis general condition because itrequires PCNs for all activities. Twocommenters requested clarificationwhether notification to the districtengineer is required if the FEMA map orlocal floodplain map shows that theproject site is outside of the 100-yearfloodplain. Three commenters asked ifthe PCN requirement in paragraph (a) ofthe proposed general condition is for allNWPs or only NWPs 21, 29, 39, 40, 42,43, and 44.

The revised general condition doesnot require notification for all activitiesauthorized by NWPs 12, 14, 29, 39, 40,42, 43, and 44. Notification is requiredonly if the proposed activity involvesdischarges of dredged or fill materialinto waters of the United States within100-year floodplains that are mappedthrough Flood Insurance Rate Maps(FIRMs) published by FEMA or FEMA-approved local floodplain maps.

Numerous commenters said thatcompensatory mitigation can be used tooffset losses of floodplain functions andvalues, including flood storage, and thatthe prohibitions in proposed GeneralCondition 27 are unnecessary. Severalcommenters remarked that floodplainissues are more appropriately addressedthrough regional conditions. Othercommenters suggested that PCNs anddiscretionary authority should be usedinstead of prohibitions. Twocommenters recommended that theCorps include local floodplain agenciesin the agency coordination process toaddress floodplain concerns.

Compensatory mitigation can be usedto ensure that the proposed workcomplies with FEMA or FEMA-approved local floodplain constructionrequirements. Since flood hazards are anational concern, we do not agree thatthis issue should be addressed solely byregional conditions. Certain NWPactivities within 100-year floodplainswill be reviewed through the PCNprocess to ensure that those activities

comply with FEMA or FEMA-approvedlocal floodplain constructionrequirements and result in minimaladverse effects on the aquaticenvironment. In addition, we believethat the waters of the United Stateswithin the mapped floodway haveinherently higher wetland functions andvalues, which should be affordedadditional protections.

Several commenters said thatproposed General Condition 27 isunnecessary because the proposedmodification of General Condition 21adequately addresses changes to surfacewater flows, including flooding. Threecommenters requested clarificationwhether runoff from buildingsconstructed in uplands within 100-yearfloodplains requires a Section 404permit. Three commenters askedwhether permanent, above-grade fills inuplands within 100-year floodplains aresubject to proposed General Condition27.

We do not agree that GeneralCondition 21 adequately addresses allpotential adverse effects to 100-yearfloodplains. Stormwater runoff frombuildings constructed in uplands within100-year floodplains does not require aSection 404 permit. During reviews ofPCNs, district engineers will considerthe adverse effects of the proposedactivity on the ecological as well asflooding functions and values of 100-year floodplains. Depending on theCorps scope of analysis for the proposedwork, district engineers will generallylimit their reviews to activities in watersof the United States within 100-yearfloodplains.

Many commenters addressedproblems associated with identifyingand mapping 100-year floodplains. Onecommenter supported the requirementfor using up-to-date FEMA maps.Several commenters advocatedexpanding proposed General Condition27 to 100-year floodplains not mappedby FEMA on its FIRMs. A large numberof commenters indicated that FEMAmaps are not accurate and should not berelied upon to identify the extent of 100-year floodplains. Two commenters saidthat the Corps should map thefloodplains. One commenter noted thatmany FEMA maps do not reflectchanges in land use that have occurredsince the last FIRM was issued, whichmakes these maps unreliable.

To effectively implement therequirements of this general condition,and to be consistent with other Federalprograms, 100-year floodplains will beidentified through the latest FIRMspublished by FEMA or FEMA-approvedlocal floodplain maps. If there are noFIRMs or FEMA-approved local

floodplain maps available for the areawhere the proposed work is located,then the requirements of this generalcondition do not apply. In such cases,the Corps will still consider the impactsof proposed projects through the PCNreview process.

Many commenters stated that in areaswhere there are no FEMA maps or thosemaps are out of date, local floodplainauthorities may be unwilling to certifythe extent of the 100-year floodplainwithout extensive analyses. Thesecommenters said that landowners mayhave to go through a lengthy andexpensive map revision process beforethe local floodplain authority willprovide the documentation required byproposed General Condition 27. Twocommenters remarked that therequirement to have a licensedprofessional engineer certify whether ornot the activity is in the 100-yearfloodplain is too restrictive. Thesecommenters said that this requirementshould be modified to allow qualifiedhydrologists to identify 100-yearfloodplains in areas not mapped byFIRMs. Several commenters suggestedthat proposed General Condition 27should contain a statement requiring theconsideration of man-made floodcontrol structures when mapping 100-year floodplains.

The revised general condition doesnot require local floodplain authoritiesto certify the extent of 100-yearfloodplains. In addition, the prospectivepermittee is not required to have alicensed professional engineer certifywhether or not the proposed work iswithin a 100-year floodplain.

One commenter objected to usingFEMA maps, stating that the scale ofthese maps makes it difficult todetermine if a particular parcel is withina 100-year floodplain. Anothercommenter objected to using FIRMsbecause they may contain large areasthat are within the 100-year floodplainbut are not mapped because ofinadequate funding. These unmappedareas would place burdens on localgovernments or the landowners, whowould be required to survey theproperty and map the 100-yearfloodplain. One commenter objected toproposed General Condition 27, becauseit would require project proponents toobtain individual permits if they cannotdemonstrate that the proposed work islocated outside of 100-year floodplainsbecause there are no FEMA or localfloodplain maps available for the projectsites.

We believe that FIRMs or FEMA-approved local floodplain maps areadequate for the purposes of this generalcondition. Utilizing existing FIRMs and



FEMA-approved local floodplain mapseliminates the additional burdens onlocal governments or landowners thatexisted in the proposed condition. Ifthere are no FIRMs or FEMA-approvedlocal floodplain maps available for theproject area, this general condition doesnot apply.

Several commenters stated thatparagraph (b) of proposed GeneralCondition 27 is an illegal delegation ofthe Corps regulatory authority because itallows FEMA or local floodplainauthorities to prohibit the use of NWPs12 and 14 in 100-year floodplains. Twocommenters disapprove of therequirement for prospective permitteesto provide, with the notification, astatement from FEMA or the local floodcontrol agency that the proposed workwill not increase flooding. Onecommenter objected to the provisions ofparagraph (b) because FEMA regulationsrequire engineering analyses only forwork in regulatory floodways. Twocommenters recommended modifyingparagraph (b) to allow professionalengineers to provide documentation todistrict engineers without submitting itto FEMA or local floodplain authoritiesfor approval.

We have revised this generalcondition to require the permittee tocomply with the appropriate FEMA orFEMA-approved local floodplainconstruction requirements. Theserequirements address impacts to baseflood elevations and 100-yearfloodplains to minimize flood damages.The revised general condition does notrequire engineering analyses on a case-by-case basis.

Two commenters said that therequirements of the proposed generalcondition will require local floodplainauthorities to develop new regulationsto address the documentation necessaryto comply with paragraph (b), sincethese are new requirements that are notcurrently used by local floodplainagencies. These commenters indicatedthat it would be more appropriate forFEMA to change its regulations toaddress these documentationrequirements. Many commenters statedthat FEMA and local floodplainauthorities are not equipped to handlethe reviews necessary for the rebuttablepresumption in paragraph (b) ofproposed General Condition 27 becauseit contains different standards than theycurrently use. Several commentersdisapprove of this general conditionbecause it provides no mechanism toresolve disputes that may occur betweenFEMA and local floodplain agencies.

We have revised this generalcondition to require the permittee tocomply with FEMA or FEMA-approved

local floodplain constructionrequirements. If those constructionrequirements change, the permitteewould have to comply with the newconstruction requirements.

Several commenters indicated that thecriteria in paragraph (b) of proposedGeneral Condition 27 (i.e., no more thanminimal alteration of the hydrology,flow regime, or volume of watersassociated with the floodplain) are notwell-defined in current FEMAregulations or the guidance forimplementing local floodplainregulations. These commenters said thatmost states do not use these criteriawhen assessing impacts to 100-yearfloodplains. Two commenters suggestedthat the Corps consult with statefloodplain regulatory agencies andFederal transportation agencies todevelop language that makes thiscondition practical to implement.Another commenter recommended thatother factors, such as the width of thedrainage course, slope, roughnesscoefficients, and location of above-gradefills within the 100-year floodplainshould be considered.

We have removed these criteria fromthis general condition. Instead, we willrely on FEMA or FEMA-approved localfloodplain construction requirements toensure that the authorized work doesnot result in more than minimal adverseeffects to the flood-holding capacity of100-year floodplains.

One commenter identifiedinconsistencies between the second andfourth sentences of paragraph (b). Thesecond sentence states that the ‘‘ * * *project and associated mitigation, willnot decrease flood-holding capacity andno more than minimally alter thehydrology, flow regime, or volume ofwaters associated with the floodplain.’’The fourth sentence states that theproject ‘‘* * * will not result inincreased flooding or more thanminimally alter floodplain hydrology orflow regimes.’’ Since the documentationrequirements of these sentences differ,the commenter was unsure as to whatconstitutes the criteria that will be usedto determine compliance with theproposed general condition.

The revised general condition doesnot contain these inconsistencies.

Two commenters stated that theproposed general condition shouldapply to NWP activities in smallertributaries, in addition to the main river.One commenter said that tributaries tostreams should be considered asseparate watersheds and eligible for theexception in paragraph (c) of proposedGeneral Condition 27. This commenterrequested criteria that will be used todetermine whether a tributary is

separate from the floodplain of the mainchannel. Another commenter contendsthat paragraph (c) of the proposedgeneral condition is too confusing andrequested clarification explaining howdistrict engineers and prospectivepermittees would determine if aparticular site is located in the portionof the watershed that drains less thanone square mile.

This general condition applies toactivities authorized by NWPs 12, 14,29, 39, 40, 42, 43, and 44, where 100-year floodplains are delineated on eitherFIRMs or FEMA-approved floodplainmaps. If no 100-year floodplain map hasbeen produced for a particular tributary,then the provisions of this generalcondition do not apply. The revisedgeneral condition does not contain aprovision similar to paragraph (c) of theproposed General Condition 27.

Several commenters suggested thatthe rebuttable presumption in paragraph(b) should be utilized for NWPs 21, 29,39, 40, 42, 43, and 44, instead ofprohibiting these activities in 100-yearfloodplains. One commenterrecommended expanding proposedGeneral Condition 27 to NWPs 7, 8, 16,and 17. Several commenters said thatproposed General Condition 27 shouldnot apply to the construction,replacement, and maintenance of watersupply facilities, fish productionfacilities, flood control facilities, andhydraulic control and drainagefacilities. Three commenters indicatedthat the proposed general conditionshould not apply to NWP 27 activities.

We have revised the proposed generalcondition to require, for NWP 29, 39, 40,42, 43, and 44 activities in flood fringesof the 100-year floodplains withinheadwater streams, that the permitteenotify the district engineer inaccordance with General Condition 13and provide documentationdemonstrating that the proposed workcomplies with FEMA or FEMA-approved local floodplain constructionregulations. We have withdrawn NWP21 from the general condition. We donot agree that this general conditionshould apply to NWPs 7, 8, and 16because the activities authorized bythese NWPs have little or no adverseeffects on the flood-holding capacity of100-year floodplains. Hydropowerprojects authorized by NWP 17 wouldbe required to comply with theappropriate floodplain constructionrequirements. This general conditiondoes not apply to water supplyfacilities, fish production facilities,flood control facilities, and hydrauliccontrol and drainage facilities, unlessthose activities are authorized by theNWPs listed in the general condition.



NWP 27 is not subject to this generalcondition.

Many commenters said that proposedGeneral Condition 27 should not applyto NWP 12 activities. One commentersuggested a 1⁄3 acre limit for utility lineactivities in 100-year floodplains.Another commenter stated that theinstallation of above-ground utility linevalves within 100-year floodplainsshould not be subject to the hydraulicmodeling requirements of paragraph (b)because these activities have minoradverse effects on flood-holdingcapacity. Several commenters said thatthe requirements of paragraph (b)should not apply to utility lines that areinstalled underground. Threecommenters said that permanent above-grade fills within 100-year floodplainsfor utility line activities should not beauthorized by NWP 12.

We do not agree that NWP 12activities should be excluded from thisgeneral condition. Utility line activitiescan adversely affect the flood-holdingcapacity of the 100-year floodplain.NWP 12 activities are required tocomply with the appropriate FEMA orFEMA-approved local floodplainconstruction requirements.

Numerous commenters stated thatproposed General Condition 27 shouldnot apply to NWP 14 activities. Onecommenter said that the proposedgeneral condition should apply only totransportation crossings that areconstructed parallel to streams. Acommenter suggested a 1⁄3 acre limit forNWP 14 activities in 100-yearfloodplains. One commenter said thatrestricting NWP 14 activities in 100-yearfloodplains could adversely affectpublic safety.

NWP 14 activities can adversely affectthe flood-holding capacity of 100-yearfloodplains, as well as surface waterflow patterns during flood events. Therevised general condition does notprohibit NWP 14 activities in 100-yearfloodplains. NWP 14 activities mustcomply with the appropriate FEMA orFEMA-approved local floodplainconstruction requirements.

Many commenters said that proposedGeneral Condition 27 should not applyto activities authorized by NWP 21because all coal mining is regulated bythe Office of Surface Mining (OSM) anddelegated state agencies. Some of thesecommenters indicated that state miningprograms have extensive performancestandards for hydrological balance,which address similar issues asproposed General Condition 27.Numerous commenters stated that OSM-approved state programs haverequirements to restore mined areas toapproximately the original contours and

that prohibiting the use of NWP 21 in100-year floodplains will place burdenson the mining industry withoutproviding any additional benefits.

We concur with these commentersand have removed NWP 21 from therevised general condition.

One commenter stated that, foractivities authorized by paragraph (a) ofNWP 40, NRCS would have todetermine if the proposed work willresult in unacceptable impacts onFEMA-mapped 100-year floodplains.This commenter said that NRCS, as partof its review, addresses impacts on floodstorage and flood flows and thatprospective permittees should beallowed to use NWP 40 if the work willnot result in impacts to 100-year floodevents. This commenter alsorecommended incorporating therequirements of proposed GeneralCondition 27 into the text of NWP 40 sothat the regulated public will be awareof these requirements.

For activities authorized by paragraph(a) of NWP 40, NRCS will determine ifthe proposed work complies with thisgeneral condition. We have addedparagraph (e) to NWP 40, which referspermittees to General Condition 26.

Many commenters objected toapplying the prohibition in paragraph(a) of proposed General Condition 27 toNWP 43 activities. A number of thesecommenters said that this prohibition isinappropriate since stormwatermanagement facilities must be locatedin or near 100-year floodplains and theirpurpose is floodplain management andflood control. Several commenters saidthat prohibiting NWP 43 activities in100-year floodplains will put citizens atgreater risks and make their propertymore susceptible to flood damage. Onecommenter stated that proposed GeneralCondition 27 should not apply to themaintenance of existing flood controlprojects.

We do not agree that NWP 43 shouldbe excluded from this general condition.NWP 43 activities must comply withFEMA or FEMA-approved localfloodplain construction requirements, ifthe activity is located in flood fringes of100-year floodplains of headwaterstreams. Furthermore, many in-streamstormwater management facilities arelocated above the 1 cfs point on streams.General Condition 26 does not applyabove the 1 cfs point, thus these projectswill not be affected. The revised generalcondition does not apply to NWP 31activities.

Many commenters stated thatproposed General Condition 27 shouldnot apply to NWP 44 activities becauseit would not provide any addedbenefits. Some of these commenters said

that aggregate mining activities oftenincrease flood storage capacity andtherefore should not be prohibited bythis general condition. Severalcommenters suggested that NWP 44activities should be subject to therebuttable presumption in paragraph (b)of the proposed general condition. Onecommenter said that the proposedgeneral condition should not apply toaggregate mining activities because sandand gravel deposits are typically locatedwithin floodplains and off-sitealternatives are usually impractical.This commenter also stated that minedland reclamation will restore surfacewater flow patterns. A commenter notedthat dikes, berms, foundations, andimpoundments associated with miningactivities can be located so that theywill not restrict the flow of floodwaters.

We do not agree that NWP 44 shouldbe excluded from this general condition,because permanent, above-grade fillsassociated with mining activities canadversely affect the flood-holdingcapacity of 100-year floodplains. Miningactivities that do not result inpermanent above-grade fills are notsubject to the requirements of thisgeneral condition.

The Corps of Engineers is veryconcerned with the loss of life andproperty resulting from unwisedevelopment in the floodplain. TheCorps has recently advocated thestrengthening of floodplain policy andthe use of non-structural measures toreduce flood damages. We believe thatthe changes to the NWP programpublished today will play an importantrole in reducing damages associatedwith development in the floodplain. Wewill monitor carefully the effectivenessof the new floodplain condition toensure that it has the intended impacton reducing floodplain development.Specifically, three years from theeffective date of the new NWPs, we willprepare a report on the use of NWPs inthe flood fringe area in the headwaters.This report will include an analysis ofthe extent, if any, to which NWPs arebeing used in the floodplain of areaswith repeated flood damages.

Proposed General Condition 27 isadopted as General Condition 26, withthe modifications discussed above.

V. Comments and Responses onNationwide Permit Definitions

We received many commentsconcerning the proposed definitions forthe NWPs. Comments regarding specificdefinitions are discussed below. In thissection, we also address requests fordefinitions of additional terms used inthe NWP program. One commenter saidthat certain terms defined in the



‘‘Definitions’’ section do not appear inthe text of NWPs and that they shouldbe removed. This commenter cited thedefinitions of ‘‘aquatic bench’’ and‘‘ephemeral streams.’’ Anothercommenter objected to the differentialtreatment of perennial, intermittent, andephemeral streams, stating that eachstream type has important functions andvalues and that the proposed NWPsimply that ephemeral streams are lessvaluable.

We have deleted the definition of theterm ‘‘aquatic bench,’’ since it is notused in the new NWPs. We believe thatit is necessary to retain the definition ofthe term ‘‘ephemeral stream’’ because itis important to recognize the differencesbetween perennial, intermittent, andephemeral streams when determiningwhether a particular project will havemore than minimal adverse effects onthe aquatic environment. For example,NWP 43 does not authorize theconstruction of new stormwatermanagement facilities in perennialstreams. Division engineers can alsoregionally condition these NWPs toaddress regional concerns for differentstream types.

Best Management Practices. Onecommenter recommended adding ‘‘andwetlands’’ after the phrase ‘‘surfacewater quality.’’

We do not agree that this change isnecessary, because wetlands are surfacewaters. This definition is adopted asproposed.

Compensatory Mitigation. Onecommenter stated that the requirementin the new NWPs for vegetated buffersadjacent to open waters is inconsistentwith the proposed definition ofcompensatory mitigation, because thatdefinition does not recognize vegetatedbuffers as a form of compensatorymitigation. Another commenterrecommended revising the definition torecognize the use of upland areas toprovide out-of-kind compensatorymitigation. One commenter said that thedefinition of this term should includereferences to mitigation banks and inlieu fee programs. One commenter saidthat the word ‘‘unavoidable’’ in thedefinition is confusing and should beremoved.

The establishment and maintenanceof vegetated buffers next to open waters,including streams, is not inconsistentwith the proposed definition of thisterm. An integral component of streamrestoration projects is thereestablishment of the riparian zone,which may involve planting trees andshrubs next to the stream to restoreaquatic habitat. It is not necessary toinclude mitigation banks and in lieu feeprograms in the definition of this term

because these are specific forms ofcompensatory mitigation. The word‘‘unavoidable’’ is an integral part of thisdefinition because the NWPs require on-site avoidance and minimization oflosses of waters of the United States, tothe maximum extent practicable (seeGeneral Condition 19). This definition isadopted as proposed.

Creation: We did not receive anycomments concerning the proposeddefinition. This definition is adopted asproposed.

Drainage Ditch. Several commentersnoted that the term ‘‘ordinary highwater line,’’ which is used in theproposed definition of this term, is notdefined in Corps regulations. Thesecommenters asked if we intended torefer to the ‘‘ordinary high water mark.’’Several commenters stated thatchannelized streams should not beincluded in this definition. Onecommenter recommended that thisdefinition differentiate betweenchannelized streams and drainageditches by stating that channelizedstreams convey water from high watertables. Another commenter objected to astatement in the preamble discussionrelated to this definition (64 FR 39351)that the maintenance of drainage ditcheswhich are constructed by channelizingstreams is exempt from Section 404permit requirements as long as themaintenance activity does not exceedthe original ditch design andconfiguration. Two commentersrequested that the Corps add structuraldrainage ditches and channels to thedefinition of this term.

One commenter said that a cleardefinition of the term ‘‘upland drainageditch’’ is needed. Another commenterobjected to the second sentence of theproposed definition, stating thatdrainage ditches are jurisdictional onlywhen they are constructed in waters ofthe United States. This commenterindicated that the entire drainage ditchshould become jurisdictional if any partof that drainage ditch is constructed inwaters of the United States.

We have withdrawn the proposeddefinition of this term from the‘‘Definitions’’ section of the NWPs,because of the complexity of thejurisdictional issues related to drainageditches.

Enhancement: We did not receive anycomments concerning the proposeddefinition. This definition is adopted asproposed.

Ephemeral Stream. Severalcommenters recommended modifyingthe proposed definition of this term tostate that ephemeral streams are notwaters of the United States as defined at33 CFR 328.3(a)(3). These commenters

also noted that in the July 1, 1998,Federal Register notice (63 FR 36042),the Corps defined the term stream bedas including only perennial andintermittent streams.

We do not agree that it is necessaryto explicitly state in the definition ofthis term that ephemeral streams are notwaters of the United States because sucha statement would be inaccurate. Anephemeral stream that meets the criteriaat 33 CFR part 328 is a water of theUnited States. We acknowledge that wemade an error on page 36042 of the July1, 1998, Federal Register notice. Ourintent was to clarify that the PCNthresholds for stream bed impacts forthe proposed NWPs apply only toperennial and intermittent stream beds,not ephemeral stream beds. The term‘‘stream bed,’’ as used for the NWPs,applies to perennial, intermittent, andephemeral stream beds. This definitionis adopted as proposed.

Farm tract: We did not receive anycomments concerning the proposeddefinition. This definition is adopted asproposed.

Independent utility: We did notreceive any comments concerning theproposed definition. This definition isadopted as proposed.

Intermittent stream: We did notreceive any comments concerning theproposed definition. This definition isadopted as proposed.

Loss of Waters of the United States.During our review of the commentsreceived in response to the July 21,1999, Federal Register notice, we foundan error in the proposed definition ofthe term ‘‘loss of waters of the UnitedStates.’’ In the fourth sentence of thedraft definition, we stated that the lossof stream bed includes the linear feet ofperennial or intermittent stream bedthat is filled or excavated. Thisstatement is inaccurate becauseephemeral stream bed that is filled orexcavated can also be considered a lossof waters of the United States. However,the 300 linear foot limit for stream bedsfilled or excavated does not apply toephemeral streams. We have modifiedthis sentence to define the loss of streambed as the linear feet of stream bed thatis filled or excavated.

One commenter requestedclarification whether the definition ofthis term refers only to permanentlosses. This commenter also said thatthe proposed definition implies that allpermanent losses of waters of theUnited States, no matter how small, areconsidered. Several commenters statedthat only permanent losses of waters ofthe United States should be regulated bythe Corps. Another commentersuggested that temporary losses should



be included in the measurement of lossof waters of the United States.

All permanent losses of waters of theUnited States are considered whencalculating the amount of loss of watersof the United States to determinewhether a particular activity complieswith the acreage or linear limits of anNWP. All discharges of dredged or fillmaterial into waters of the United Statesresulting in permanent or temporarylosses of waters of the United States areregulated by the Corps, unless they arespecifically exempt under Section 404(f)of the Clean Water Act. We do not agreethat temporary losses of waters of theUnited States should be included in thethreshold measurement to determinewhether a activity may qualify for anNWP, since these areas revert back towaters of the United States once theyare restored.

One commenter asked if the term‘‘loss of waters of the United States’’includes the removal of silt that hasaccumulated in a channel. Anothercommenter said that the proposeddefinition is so broad that it wouldinclude any effect, not just losses. Thiscommenter said that it is not clearwhether maintenance dredging of floodcontrol channels to restore designgrades is considered a loss of waters ofthe United States. One commenterobjected to the third sentence of theproposed definition, stating that thissentence is inconsistent with Corpspractice of considering compensatorymitigation when determining whetherthe adverse effects on the aquaticenvironment are minimal. A commentersuggested that the Corps consider theentire single and complete project todetermine the amount of loss of watersof the United States and whether theadverse effects are minimal.

The term ‘‘loss of waters of the UnitedStates’’ does not include maintenancedredging activities that removeaccumulated sediments, provided thedredged material is deposited in uplanddisposal sites. An exception occurswhere the channel has accumulated somuch sediment that wetlands havedeveloped in the channel and theremoval of those wetlands are necessaryto reconstruct the channel. In thatsituation, we would consider theactivity to result in a loss of waters ofthe United States. However, in mostsituations mitigation is not required forthe cyclical removal of vegetationduring maintenance activities.

The third sentence of this definitionis not inconsistent with our policy ofusing compensatory mitigation todetermine whether the net adverseeffects of a particular activity on theaquatic environment are minimal. This

part of the definition merely states thatcompensatory mitigation cannot be usedto offset a loss of waters of the UnitedStates to meet the acreage limit of anNWP. For example, a project proponentcannot create 1⁄2 acre of wetlands tochange a 3⁄4 acre loss of wetlands to a1⁄4 acre loss of wetlands (see paragraph(b) of General Condition 19). However,the district engineer will considercompensatory mitigation whendetermining whether the net adverseeffects on the aquatic environment areminimal.

One commenter said that thisdefinition should also include long-term, but temporary, impacts to aquaticresource functions and values. Anothercommenter stated that discharges ofdredged or fill material into waters ofthe United States to constructcompensatory mitigation projectsshould be included in the measurementof loss of waters of the United Statesbecause these projects do not alwayssucceed.

District engineers will determine, ona case-by-case basis whether an activityresults in permanent or temporarylosses of waters of the United States. Wedo not agree that impacts due to theconstruction of compensatory mitigationprojects should be included in themeasurement of loss of waters of theUnited States because these activitiesoffset losses of waters of the UnitedStates. This definition is adopted withthe modification discussed above.

Non-tidal wetland. One commentersaid that the third sentence of theproposed definition is not accuratebecause it changes the definition of hightide line. This commenter believes thatthe maximum height of the tide is notthe spring high tide.

The spring high tide line is thenormal high tide line that occurs duringthe tidal cycle. Water levels higher thanspring high tides result from stormsurges, which are not part of the normaltidal cycle. This definition is retained asproposed.

Open Water. Two commenters statedthat the proposed definition of this termis confusing and asked whether allwaters of the United States that haveordinary high water marks are openwaters. These commenters also inquiredwhether this term applies to other areas,such as ephemeral washes, arroyos, andvernal pools, that are not inundated forsufficient amounts of time to developOHWMs and may not be waters of theUnited States. Two commenters saidthat the definition of this term shouldspecifically exclude ephemeral washes.One commenter requested that theCorps clarify whether or not all watersof the United States have an OHWM.

To clarify this definition, we havemodified the second sentence to statethat open waters either have little or noemergent aquatic vegetation. Vegetatedshallows are considered to be openwaters. Waters of the United States withsubstantial amounts of emergent aquaticvegetation are wetlands, which may ormay not have an OHWM. An ephemeralwash, arroyo, or vernal pool that doesnot have an OHWM is not a water of theUnited States, unless that area haswetlands that meet the criteria in 33CFR part 328. We have added a sentenceto the definition which states thatephemeral waters are not consideredopen waters, for the purposes of theNWPs. The definition of this term isadopted with the modificationsdiscussed above.

Perennial stream. One commenterrecommended that the Corps modify theproposed definition to state that thewater table ‘‘discharges’’ into the streamfor most of the year.

We do not agree with this comment,because using the word ‘‘discharge’’ inthis definition is likely to createconfusion since certain NWPs authorizedischarges of dredged or fill materialinto waters of the United States forspecific activities. The definition isadopted as proposed.

Permanent above-grade fill. Severalcommenters requested a more explicitdefinition of the word ‘‘permanent’’ asused in the context of this term. Onecommenter asked for clarification ofwhat is considered ‘‘above-grade’’ forthe purposes of this definition. Onecommenter said that any discharge ofdredged or fill material into waters ofthe United States should be consideredan above-grade fill.

District engineers will determine, ona case-by-case basis, what constitutes apermanent, above-grade fill for thepurposes of this definition and GeneralCondition 26. Not all discharges ofdredged or fill material into waters ofthe United States result in permanent,above-grade fills. For example, duringthe installation of an undergroundutility line, a wetland could beexcavated and backfilled with nopermanent change in grade. We believethe definition is adequately clear.

One commenter expressed concernthat the use of the word ‘‘substantial’’ inthe definition of this term wouldprohibit stockpiling in 100-yearfloodplains during sand and gravelmining operations. Another commenterrequested that the last sentence of thisdefinition specifically state whichNWPs are excluded from this definition,and whether NWP 12 is one of theexcluded NWPs.



Temporary stockpiles of materialsduring mining operations would not beconsidered permanent above-grade fillsfor the purposes of this definition andGeneral Condition 26. The exclusion inthe last sentence of this definitionapplies to all structural dischargesauthorized by NWPs, except forstructural discharges that are authorizedby the NWPs listed in GeneralCondition 26 (i.e., NWPs 12, 14, 29, 39,40, 42, 43, and 44). This definition isadopted as proposed.

Playa. Many commenters objected tothe proposed definition of this term,stating that this type of aquatic habitatis found throughout the country.Various commenters suggestedadditional geographic areas that shouldbe included, such as Oklahoma,Colorado, Kansas, Oregon, Washington,and Idaho. Another commenter objectedto the inclusion of the word ‘‘small’’ inthe proposed definition because someplayas can be large in size. Thiscommenter also objected to includingthe phrase ‘‘emergent hydrophyticvegetation’’ in the definition becausemany playas do not support vegetation.

Since we have removed the indexedacreage limit for discharges of dredgedor fill material into playas, prairiepotholes, and vernal pools from NWP40, therefore we have removed theproposed definition of a playa.

Prairie pothole. Many commentersobjected to the proposed definition ofthis term, stating that this type ofaquatic habitat is found throughout thecountry.

Since we have removed the indexedacreage limit for discharges of dredgedor fill material into playas, prairiepotholes, and vernal pools from NWP40, we have removed the proposeddefinition of prairie pothole.

Preservation: We did not receive anycomments concerning the proposeddefinition. This definition is adopted asproposed.

Project Area. One commenter objectedto the inclusion of open space in thedefinition of this term, because thecommenter believes that it penalizes thepermittee for avoiding impacts to watersof the United States. Anothercommenter said that the exclusion ofpublic roads from the definition of‘‘project area’’ is unnecessary becausethe public roads would not have beenbuilt unless the subdivision wasconstructed.

Since we have replaced the indexedacreage limit of NWP 39 with a simple1⁄2 acre limit, we have deleted theproposed definition of project area fromthis section.

Restoration. One commenterrecommended deleting the phrase ‘‘or

exist in a substantially degraded state’’from the definition of this term, becauseit overlaps with the definition of theterm ‘‘enhancement.’’

The definition of this term was takenfrom the ‘‘Federal Guidance for theEstablishment, Use and Operation ofMitigation Banks’’ that was published inthe November 28, 1995, FederalRegister (60 FR 58605). Therefore, wecannot make the recommended changebecause this guidance is still in effect.The definition is adopted as proposed.

Riffle and Pool Complex. Onecommenter suggested that this termapply only to perennial streams and notto intermittent or ephemeral streams.This commenter also recommendedinserting the word ‘‘moderately’’ beforethe word ‘‘steep’’ in the second sentenceof this definition because stream bedswith steep gradients seldom have riffleand pool complexes.

The definition of this term was takenfrom 40 CFR 230.45. Therefore, we willnot modify the definition of this termfor the purposes of the NWPs. Districtengineers will use their judgement toidentify riffle and pool complexes atproject sites and to distinguish betweenriffle and pool complexes (which arefound in areas with moderate grades)and step-pool complexes (which arefound in areas with steep grades, wherethe stream bed material consists mostlyof boulders and large rocks). Thedefinition is adopted as proposed.

Single and Complete Project. Onecommenter said that the criteria forlinear single and complete projectsshould be the same as for otheractivities.

We do not agree with this comment.The definition of single and completelinear projects is consistent with thecurrent NWP regulations at 33 CFR330.2(i). This definition is adopted asproposed.

Stormwater management. Severalcommenters objected to the proposeddefinition, stating that it does notspecifically include facilities thatreduce downstream flooding. Thesecommenters said that the definitionshould include flood control facilities sothat they can be authorized by NWP 43.

The proposed definition doesconsider flooding and the definition ofits related term, ‘‘stormwatermanagement facilities,’’ addressesflooding issues by discussing runoff inthe definition. NWP 43 can be used toauthorize certain types of flood controlfacilities, if they are constructed tocontrol runoff and reduce floodingimpacts. This definition is adopted asproposed.

Stormwater management facilities.Two commenters said that this

definition should distinguish betweenfacilities that are designed to protectwater quality and facilities that aredesigned for flood control purposes.

We disagree with these commentersbecause stormwater managementfacilities usually perform both functionsby slowing runoff during storms andtrapping sediments and chemicalcompounds. This definition is adoptedas proposed.

Stream bed: We did not receive anycomments concerning the proposeddefinition. This definition is adopted asproposed.

Stream channelization. Onecommenter requested that the Corpsmodify the definition of this term tomore specifically identify whatconstitutes stream channelization.Another commenter said that thedefinition should contain a statementthat excavation activities are notregulated by the Corps. Twocommenters stated that this definitionshould include definitions for the terms‘‘structures’’ and ‘‘fills’’ so that theregulated public will know when themaintenance of these structures and fillsis eligible for NWP 3 or the maintenanceexemption in section 404(f) of the CleanWater Act.

The proposed definition alreadyprovides sufficient examples ofactivities that may result in streamchannelization. District engineers willdetermine on a case-by-case basiswhether a particular activity involvesstream channelization. We discuss theregulation of excavation activities inwaters of the United States in a previoussection of this Federal Register noticeand do not believe it is necessary toaddress that issue in this definition. Wedo not agree that it is necessary toprovide definitions of the terms‘‘structure’’ and ‘‘fill’’ in the definitionof this term. This definition is adoptedas proposed.

Tidal Wetland. One commenter statedthat the term ‘‘spring high tide’’ shouldbe replaced with the phrase ‘‘mean hightide’’ to make the definition consistentwith the provisions of section 10 of theRivers and Harbors Act.

Although the shoreward limit ofjurisdiction for section 10 of the Riversand Harbors Act is mean (average) highwater (see 33 CFR 329.12(a)(2)), springhigh tides are waters of the UnitedStates under Section 404 of the CleanWater Act (see 33 CFR 328.3(d) and (f)).Tidal wetlands are wetlands that areinundated with tidal waters, includingspring high tides. Therefore, thisdefinition is adopted as proposed.

Vegetated Shallows. One commentersuggested inserting the phrase



‘‘submerged or floating’’ before the word‘‘vegetation’’ in the proposed definition.

The proposed definition was takenfrom the definition of vegetatedshallows published at 40 CFR 230.43and we do not agree that therecommended change is necessary. Thisdefinition is adopted as proposed.

Vernal pool. Many commentersobjected to the proposed definition ofthis term, stating that this type ofaquatic habitat is found throughout thecountry. One commenter stated that notall regions with vernal pools exhibit the‘‘Mediterranean’’ climates cited in theproposed definition.

Since we have removed the indexedacreage limit for discharges of dredgedor fill material into playas, prairiepotholes, and vernal pools from NWP40, we have removed the proposeddefinition of vernal pools from thissection.

Waterbody. One commenter suggestedthat the word ‘‘contiguous’’ in thesecond sentence of the proposeddefinition should be replaced with theword ‘‘adjacent.’’

We disagree with thisrecommendation, because wetlands thatare adjacent to a waterbody are notnecessarily part of the waterbody,unless there is a direct, surface waterconnection (i.e., contiguous) betweenthe wetland and the waterbody. Thisdefinition is adopted as proposed.

Additional Definitions. Severalcommenters recommended that theCorps include definitions of other termsin this section of the NWPs. Thesecomments are addressed below.

One commenter said that the phrase‘‘minimal effects on the aquaticenvironment’’ needs to be preciselydefined so that users of NWPs willknow the extent of adverse effectsauthorized by the NWPs. Twocommenters suggested addingdefinitions of the terms ‘‘isolatedwaters’’ and ‘‘headwaters.’’ One of thesecommenters requested a definition ofthe term ‘‘excavation.’’ One commentersaid that a definition of the term‘‘upland’’ as it is used in the context ofNWPs 39, 43, and 44 is needed. Twocommenters asked for a definition of thephrase ‘‘utility line substations’’ as usedin NWP 12. Another commenterrequested a definition of the term‘‘practicable’’ as it is used in GeneralCondition 21. This commenterrecommended adopting the definition inthe Section 404(b)(1) guidelines.

We cannot provide a nationaldefinition of the term ‘‘minimal effectson the aquatic environment’’ becausethe determination of minimal adverseeffects for the NWPs and other generalpermits must be made on a case-by-case

basis, by considering site characteristics,the functions and values of waters of theUnited States, the quality of thosewaters, regional differences in aquaticresource functions and values, and otherfactors. Definitions of the terms‘‘isolated waters’’ and ‘‘headwaters’’ arefound at 33 CFR 330.2(e) and 33 CFR330.2(d), respectively. We do not agreethat it is necessary to provide adefinition of the terms ‘‘excavation,’’‘‘uplands,’’ or ‘‘utility line substations.’’The Corps regulatory program uses thedefinition of the term ‘‘practicable’’found at 40 CFR 230.3(q).

One commenter requested a definitionof the term ‘‘non-tidal wetlands adjacentto tidal waters’’ because the word‘‘adjacent’’ can be broadly defined. Thiscommenter recommended limiting thephrase ‘‘non-tidal wetlands adjacent totidal water’’ to wetlands that are foundbetween the mean tide line and thespring high tide line; wetlandslandward of the spring high tide linewould not be considered adjacent totidal waters.

As discussed in a previous paragraphin this section, wetlands locatedbetween the mean high tide line and thespring high tide line are tidal wetlands,because they are inundated with tidalwaters. Non-tidal wetlands that arelandward of the spring high tide lineand bordering, contiguous, orneighboring to tidal waters are adjacentto tidal waters. District engineers willdetermine, on a case-by-case basis,whether a particular non-tidal wetlandis adjacent to tidal waters.

One commenter recommendedincluding a more detailed definition ofthe term ‘‘lower perennial stream’’ thatis developed from the Cowardindefinition and discusses the streamgradient, water velocity, streamsubstrate, faunal composition, andfloodplain development of the lowerperennial stream.

Since the term ‘‘lower perennialstream’’ is used only in the context ofNWP 44, we have provided a modifiedversion of the Cowardin definition inthe text of this NWP. This modifieddefinition describes the stream gradient,stream flow, water velocity, and thestream substrate. We do not agree thatit is necessary to address the type oforganisms that inhabit lower perennialstreams, since the physical descriptionof these stream segments is adequate forthe purposes of NWP 44.

One commenter suggested that theCorps include a definition of the term‘‘vegetated buffer’’ in this section. Weconcur with this comment and haveadded a definition of this term to the‘‘Definitions’’ section of the NWPs.

For the implementation of GeneralCondition 26, we have also addeddefinitions of the terms ‘‘flood fringe’’and ‘‘floodway’’ to this section. Thesedefinitions were taken from 44 CFR 9.4,FEMA’s regulations for floodplainmanagement and protection ofwetlands.

Alabama

Mobile District Engineer, ATTN: CESAM–OP–S, 109 St. Joseph Street, Mobile, AL36602–3630

Alaska

Alaska District Engineer, ATTN: CEPOA–CO–R, P.O. Box 898, Anchorage, AK99506–0898

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–ET–WR, P.O. Box 867, Little Rock,AR 72203–0867

California

Sacramento District Engineer, ATTN:CESPK–CO–R, 1325 J Street, Sacramento,CA 95814–4794

Colorado

Albuquerque District Engineer, ATTN:CESPA–OD–R, 4101 Jefferson Plaza NE,Room 302, Albuquerque, NM 87109–3435

Connecticut

New England District Engineer, ATTN:CENAE–OD–R, 696 Virginia Road,Concord, MA 01742–2751

Delaware

Philadelphia District Engineer, ATTN:CENAP–OP–R, Wannamaker Building, 100Penn Square East Philadelphia, PA 19107–3390

Florida

Jacksonville District Engineer, ATTN:CESAJ–RD, P.O. Box 4970, Jacksonville, FL32202–4412

Georgia

Savannah District Engineer, ATTN: CESAS–OP–F, P.O. Box 889, Savannah, GA 31402–0889

Hawaii

Honolulu District Engineer, ATTN: CEPOH–CO–O, Building 230, Fort Shafter,Honolulu, HI 96858–5440

Idaho

Walla Walla District Engineer, ATTN:CENWW–OD–RF, 210 N. Third Street,City-County Airport, Walla Walla, WA99362–1876

Illinois

Rock Island District Engineer, ATTN:CEMVR–RD, P.O. Box 004, Rock Island, IL61204–2004



Indiana

Louisville District Engineer, ATTN: CELRL–OR–F, P.O. Box 59, Louisville, KY 40201–0059

Iowa

Rock Island District Engineer, ATTN:CEMVR–RD, P.O. Box 2004, Rock Island,IL 61204–2004

Kansas

Kansas City District Engineer, ATTN:CENWK–OD–R, 700 Federal Building, 601E. 12th Street, Kansas City, MO 64106–2896

Kentucky

Louisville District Engineer, ATTN: CELRL–OR–F, P.O. Box 59, Louisville, KY 40201–0059

Louisiana

New Orleans District Engineer, ATTN:CEMVN–OD–S, P.O. Box 60267, NewOrleans, LA 70160–0267

Maine


Maryland

Baltimore District Engineer, ATTN: CENAB–OP–R, P.O. Box 1715, Baltimore, MD21203–1715

Massachusetts


Michigan

Detroit District Engineer, ATTN: CELRE–CO–L, P.O. Box 1027, Detroit, MI 48231–1027

Minnesota

St. Paul District Engineer, ATTN: CEMVP–CO–R, 190 Fifth Street East, St. Paul, MN55101–1638

Mississippi

Vicksburg District Engineer, ATTN: CEMVK–OD–F, 4155 Clay Street, Vicksburg, MS39183–3435

Missouri

Kansas City District Engineer, ATTN:CENWK–OD–R, 700 Federal Building, 601E. 12th Street, Kansas City, MO 64106–2896

Montana

Omaha District Engineer, ATTN: CENWO–OP–R, 215 N. 17th Street, Omaha, NE68102–4978

Nebraska

Omaha District Engineer, ATTN: CENWO–OP–R, 215 N. 17th Street, Omaha, NE68102–4978

Nevada

Sacramento District Engineer, ATTN:CESPK–CO–R, 1325 J Street, Sacramento,CA 95814–2922

New Hampshire


New Jersey

Philadelphia District Engineer, ATTN:CENAP–OP–R, Wannamaker Building, 100Penn Square East, Philadelphia, PA 19107–3390

New Mexico

Albuquerque District Engineer, ATTN:CESPA–OD–R, 4101 Jefferson Plaza NE,Room 302, Albuquerque, NM 87109–3435

New York

New York District Engineer, ATTN: CENAN–OP–R, 26 Federal Plaza, New York, NY10278–9998

North Carolina

Wilmington District Engineer, ATTN:CESAW–RG, P.O. Box 1890, Wilmington,NC 28402–1890

North Dakota

Omaha District Engineer, ATTN: CENWO–OP–R, 215 North 17th Street, Omaha, NE68102–4978

Ohio

Huntington District Engineer, ATTN:CELRH–OR–F, 502 8th Street, Huntington,WV 25701–2070

Oklahoma

Tulsa District Engineer, ATTN: CESWT–PE–R, 1645 South 101st East Avenue, Tulsa,OK 74128–4609

Oregon

Portland District Engineer, ATTN: CENWP–OP–G, P.O. Box 2946, Portland, OR 97208–2946

Pennsylvania


Rhode Island


South Carolina

Charleston District Engineer, ATTN: CESAC–CO–P, P.O. Box 919, Charleston, SC29402–0919

South Dakota

Omaha District Engineer, ATTN: CENWO–OP–R, 215 North 17th Street, Omaha, NE68102–4978

Tennessee

Nashville District Engineer, ATTN: CELRN–CO–F, P.O. Box 1070, Nashville, TN37202–1070

Texas

Ft. Worth District Engineer, ATTN: CESWF–EV–R, P.O. Box 17300, Ft. Worth, TX76102–0300

Utah

Sacramento District Engineer, ATTN:CESPK–CO–R, 1325 J Street, CA 95814–2922

Vermont


Virginia

Norfolk District Engineer, ATTN: CENAO–CO–R, 803 Front Street, Norfolk, VA23510–1096

Washington

Seattle District Engineer, ATTN: CENWS–OD–RD, P.O. Box 3755, Seattle, WA98124–2255

West Virginia

Huntington District Engineer, ATTN:CELRH–OR–F, 502 8th Street, Huntington,WV 25701–2070

Wisconsin

St. Paul District Engineer, ATTN: CEMVP–CO–R, 190 Fifth Street East, St. Paul, MN55101–1638

Wyoming

Omaha District Engineer, ATTN: CENWO–OP–R, 215 North 17th Street, NE 68102–4978

District of Columbia


Pacific Territories

Honolulu District Engineer, ATTN: CEPOH–CO–O, Building 230, Fort Shafter,Honolulu, HI 96858–5440

Puerto Rico and Virgin Islands

Jacksonville District Engineer, ATTN:CESAJ–RD, P.O. Box 4970, Jacksonville, FL32202–4412

Date: February 28, 2000.Hans A. Van Winkle,Deputy Commander for Civil Works.

Accordingly, these NationwidePermits are issued as follows:

Nationwide Permits, Conditions, FurtherInformation, and Definitions

A. Index of Nationwide Permits,Conditions, Further Information, andDefinitions

Nationwide Permits

3. Maintenance7. Outfall Structures and Maintenance12. Utility Line Activities14. Linear Transportation Crossings27. Stream and Wetland Restoration

Activities39. Residential, Commercial, and

Institutional Developments40. Agricultural Activities41. Reshaping Existing Drainage Ditches42. Recreational Facilities



43. Stormwater Management Facilities44. Mining Activities

Nationwide Permit General Conditions

1. Navigation2. Proper Maintenance3. Soil Erosion and Sediment Controls4. Aquatic Life Movements5. Equipment6. Regional and Case-by-Case

Conditions7. Wild and Scenic Rivers8. Tribal Rights9. Water Quality10. Coastal Zone Management11. Endangered Species12. Historic Properties13. Notification14. Compliance Certification15. Use of Multiple Nationwide Permits.16. Water Supply Intakes17. Shellfish Beds18. Suitable Material19. Mitigation20. Spawning Areas21. Management of Water Flows22. Adverse Effects from Impoundments23. Waterfowl Breeding Areas24. Removal of Temporary Fills25. Designated Critical Resource Waters26. Fills Within 100-year Floodplains

Further Information

Definitions

Best Management PracticesCompensatory mitigationCreationEnhancementEphemeral streamFarm tractFlood FringeFloodwayIndependent utilityIntermittent streamLoss of waters of the United StatesNon-tidal wetlandOpen waterPerennial streamPermanent above-grade fillPreservationRestorationRiffle and pool complexSingle and complete projectStormwater managementStormwater management facilitiesStream bedStream channelizationTidal wetlandVegetated bufferVegetated shallowsWaterbody

B. Nationwide Permits and Conditions

3. Maintenance. Activities related to:(i) The repair, rehabilitation, orreplacement of any previouslyauthorized, currently serviceable,structure, or fill, or of any currentlyserviceable structure or fill authorized

by 33 CFR 330.3, provided the structureor fill is not to be put to uses differingfrom those uses specified orcontemplated for it in the originalpermit or the most recently authorizedmodification. Minor deviations in thestructure’s configuration or filled area,including those due to changes inmaterials, construction techniques, orcurrent construction codes or safetystandards which are necessary to makerepair, rehabilitation, or replacement,are permitted, provided the adverseenvironmental effects resulting fromsuch repair, rehabilitation, orreplacement are minimal. Currentlyserviceable means useable as is or withsome maintenance, but not so degradedas to essentially require reconstruction.This nationwide permit authorizes therepair, rehabilitation, or replacement ofthose structures or fills destroyed ordamaged by storms, floods, fire, or otherdiscrete events, provided the repair,rehabilitation, or replacement iscommenced, or is under contract tocommence, within two years of the dateof their destruction or damage. In casesof catastrophic events, such ashurricanes or tornadoes, this two-yearlimit may be waived by the DistrictEngineer, provided the permittee candemonstrate funding, contract, or othersimilar delays.

(ii) Discharges of dredged or fillmaterial, including excavation, into allwaters of the United States to removeaccumulated sediments and debris inthe vicinity of, and within, existingstructures (e.g., bridges, culverted roadcrossings, water intake structures, etc.)and the placement of new or additionalrip rap to protect the structure, providedthe permittee notifies the DistrictEngineer in accordance with GeneralCondition 13. The removal of sedimentis limited to the minimum necessary torestore the waterway in the immediatevicinity of the structure to theapproximate dimensions that existedwhen the structure was built, but cannotextend further than 200 feet in anydirection from the structure. Theplacement of rip rap must be theminimum necessary to protect thestructure or to ensure the safety of thestructure. All excavated materials mustbe deposited and retained in an uplandarea unless otherwise specificallyapproved by the District Engineer underseparate authorization. Any bankstabilization measures not directlyassociated with the structure willrequire a separate authorization fromthe District Engineer.

(iii) Discharges of dredged or fillmaterial, including excavation, into allwaters of the United States for activitiesassociated with the restoration of

upland areas damaged by a storm, flood,or other discrete event, including theconstruction, placement, or installationof upland protection structures andminor dredging to remove obstructionsin waters of the United States. (Uplandslost as a result of a storm, flood, or otherdiscrete event can be replaced withouta Section 404 permit provided theuplands are restored to their originalpre-event location. This NWP is for theactivities in waters of the United Statesassociated with the replacement of theuplands.) The permittee must notify theDistrict Engineer, in accordance withGeneral Condition 13, within 12 monthsof the date of the damage and the workmust commence, or be under contract tocommence, within two years of the dateof the damage. The permittee shouldprovide evidence, such as a recenttopographic survey or photographs, tojustify the extent of the proposedrestoration. The restoration of thedamaged areas cannot exceed thecontours, or ordinary high water mark,that existed prior to the damage. TheDistrict Engineer retains the right todetermine the extent of the pre-existingconditions and the extent of anyrestoration work authorized by thispermit. Minor dredging to removeobstructions from the adjacentwaterbody is limited to 50 cubic yardsbelow the plane of the ordinary highwater mark, and is limited to theamount necessary to restore the pre-existing bottom contours of thewaterbody. The dredging may not bedone primarily to obtain fill for anyrestoration activities. The discharge ofdredged or fill material and all relatedwork needed to restore the upland mustbe part of a single and complete project.This permit cannot be used inconjunction with NWP 18 or NWP 19 torestore damaged upland areas. Thispermit does not authorize thereplacement of lands lost throughgradual erosion processes.

Maintenance dredging for the primarypurpose of navigation and beachrestoration are not authorized by thispermit. This permit does not authorizenew stream channelization or streamrelocation projects. Any workauthorized by this permit must notcause more than minimal degradation ofwater quality, more than minimalchanges to the flow characteristics of thestream, or increase flooding (SeeGeneral Conditions 9 and 21). (Sections10 and 404)

Note: This NWP authorizes the minimalimpact repair, rehabilitation, or replacementof any previously authorized structure or fillthat does not qualify for the Section 404(f)exemption for maintenance.



7. Outfall Structures andMaintenance. Activities related to: (i)construction of outfall structures andassociated intake structures where theeffluent from the outfall is authorized,conditionally authorized, or specificallyexempted, or is otherwise in compliancewith regulations issued under theNational Pollutant DischargeElimination System program (Section402 of the Clean Water Act), and (ii)maintenance excavation, includingdredging, to remove accumulatedsediments blocking or restricting outfalland intake structures, accumulatedsediments from small impoundmentsassociated with outfall and intakestructures, and accumulated sedimentsfrom canals associated with outfall andintake structures, provided the activitymeets all of the following criteria:

a. The permittee notifies the DistrictEngineer in accordance with GeneralCondition 13;

b. The amount of excavated ordredged material must be the minimumnecessary to restore the outfalls, intakes,small impoundments, and canals tooriginal design capacities and designconfigurations (i.e., depth and width);

c. The excavated or dredged materialis deposited and retained at an uplandsite, unless otherwise approved by theDistrict Engineer under separateauthorization; and

d. Proper soil erosion and sedimentcontrol measures are used to minimizereentry of sediments into waters of theUnited States.

The construction of intake structuresis not authorized by this NWP, unlessthey are directly associated with anauthorized outfall structure. Formaintenance excavation and dredging toremove accumulated sediments, thenotification must include informationregarding the original design capacitiesand configurations of the facility andthe presence of special aquatic sites(e.g., vegetated shallows) in the vicinityof the proposed work. (Sections 10 and404)

12. Utility Line Activities. Activitiesrequired for the construction,maintenance, and repair of utility linesand associated facilities in waters of theUnited States as follows:

(i) Utility lines: The construction,maintenance, or repair of utility lines,including outfall and intake structuresand the associated excavation, backfill,or bedding for the utility lines, in allwaters of the United States, providedthere is no change in preconstructioncontours. A ‘‘utility line’’ is defined asany pipe or pipeline for thetransportation of any gaseous, liquid,liquefiable, or slurry substance, for anypurpose, and any cable, line, or wire for

the transmission for any purpose ofelectrical energy, telephone, andtelegraph messages, and radio andtelevision communication (see Note 1,below). Material resulting from trenchexcavation may be temporarily sidecast(up to three months) into waters of theUnited States, provided the material isnot placed in such a manner that it isdispersed by currents or other forces.The District Engineer may extend theperiod of temporary side casting not toexceed a total of 180 days, whereappropriate. In wetlands, the top 6’’ to12’’ of the trench should normally bebackfilled with topsoil from the trench.Furthermore, the trench cannot beconstructed in such a manner as todrain waters of the United States (e.g.,backfilling with extensive gravel layers,creating a french drain effect). Forexample, utility line trenches can bebackfilled with clay blocks to ensurethat the trench does not drain the watersof the United States through which theutility line is installed. Any exposedslopes and stream banks must bestabilized immediately upon completionof the utility line crossing of eachwaterbody.

(ii) Utility line substations: Theconstruction, maintenance, orexpansion of a substation facilityassociated with a power line or utilityline in non-tidal waters of the UnitedStates, excluding non-tidal wetlandsadjacent to tidal waters, provided theactivity does not result in the loss ofgreater than 1⁄2 acre of non-tidal watersof the United States.

(iii) Foundations for overhead utilityline towers, poles, and anchors: Theconstruction or maintenance offoundations for overhead utility linetowers, poles, and anchors in all watersof the United States, provided thefoundations are the minimum sizenecessary and separate footings for eachtower leg (rather than a larger singlepad) are used where feasible.

(iv) Access roads: The construction ofaccess roads for the construction andmaintenance of utility lines, includingoverhead power lines and utility linesubstations, in non-tidal waters of theUnited States, excluding non-tidalwetlands adjacent to tidal waters,provided the discharge does not causethe loss of greater than 1⁄2 acre of non-tidal waters of the United States. Accessroads shall be the minimum widthnecessary (see Note 2, below). Accessroads must be constructed so that thelength of the road minimizes theadverse effects on waters of the UnitedStates and as near as possible topreconstruction contours and elevations(e.g., at grade corduroy roads orgeotextile/gravel roads). Access roads

constructed above preconstructioncontours and elevations in waters of theUnited States must be properly bridgedor culverted to maintain surface flows.

The term ‘‘utility line’’ does notinclude activities which drain a water ofthe United States, such as drainage tileor french drains; however, it does applyto pipes conveying drainage fromanother area. For the purposes of thisNWP, the loss of waters of the UnitedStates includes the filled area pluswaters of the United States that areadversely affected by flooding,excavation, or drainage as a result of theproject. Activities authorized byparagraphs (i) through (iv) may notexceed a total of 1⁄2 acre loss of watersof the United States. Waters of theUnited States temporarily affected byfilling, flooding, excavation, or drainage,where the project area is restored topreconstruction contours andelevations, are not included in thecalculation of permanent loss of watersof the United States. This includestemporary construction mats (e.g.,timber, steel, geotextile) used duringconstruction and removed uponcompletion of the work. Where certainfunctions and values of waters of theUnited States are permanently adverselyaffected, such as the conversion of aforested wetland to a herbaceouswetland in the permanently maintainedutility line right-of-way, mitigation willbe required to reduce the adverse effectsof the project to the minimal level.

Mechanized landclearing necessaryfor the construction, maintenance, orrepair of utility lines and theconstruction, maintenance, andexpansion of utility line substations,foundations for overhead utility lines,and access roads is authorized, providedthe cleared area is kept to the minimumnecessary and preconstruction contoursare maintained as near as possible. Thearea of waters of the United States thatis filled, excavated, or flooded must belimited to the minimum necessary toconstruct the utility line, substations,foundations, and access roads. Excessmaterial must be removed to uplandareas immediately upon completion ofconstruction. This NWP may authorizeutility lines in or affecting navigablewaters of the United States, even if thereis no associated discharge of dredged orfill material (See 33 CFR Part 322).

Notification: The permittee mustnotify the District Engineer inaccordance with General Condition 13,if any of the following criteria are met:

(a) Mechanized land clearing in aforested wetland for the utility lineright-of-way;

(b) A Section 10 permit is required;



(c) The utility line in waters of theUnited States, excluding overhead lines,exceeds 500 feet;

(d) The utility line is placed within ajurisdictional area (i.e., a water of theUnited States), and it runs parallel to astream bed that is within thatjurisdictional area;

(e) Discharges associated with theconstruction of utility line substationsthat result in the loss of greater than 1⁄10

acre of waters of the United States;(f) Permanent access roads

constructed above grade in waters of theUnited States for a distance of morethan 500 feet; or

(g) Permanent access roadsconstructed in waters of the UnitedStates with impervious materials.(Sections 10 and 404)

Note 1: Overhead utility lines constructedover Section 10 waters and utility lines thatare routed in or under Section 10 waterswithout a discharge of dredged or fillmaterial require a Section 10 permit; exceptfor pipes or pipelines used to transportgaseous, liquid, liquefiable, or slurrysubstances over navigable waters of theUnited States, which are considered to bebridges, not utility lines, and may require apermit from the U.S. Coast Guard pursuantto Section 9 of the Rivers and Harbors Actof 1899. However, any discharges of dredgedor fill material associated with such pipelineswill require a Corps permit under Section404.

Note 2: Access roads used for bothconstruction and maintenance may beauthorized, provided they meet the terms andconditions of this NWP. Access roads usedsolely for construction of the utility line mustbe removed upon completion of the work andthe area restored to preconstruction contours,elevations, and wetland conditions.Temporary access roads for construction maybe authorized by NWP 33.

Note 3: Where the proposed utility line isconstructed or installed in navigable watersof the United States (i.e., Section 10 waters),copies of the PCN and NWP verification willbe sent by the Corps to the National Oceanicand Atmospheric Administration, NationalOcean Service, for charting the utility line toprotect navigation.

14. Linear Transportation Crossings.Activities required for the construction,expansion, modification, orimprovement of linear transportationcrossings (e.g., highways, railways,trails, and airport runways andtaxiways) in waters of the United States,including wetlands, provided theactivity meets the following criteria:

a. This NWP is subject to thefollowing acreage and linear limits:

(1) For public linear transportationprojects in non-tidal waters, excludingnon-tidal wetlands adjacent to tidalwaters, provided the discharge does notcause the loss of greater than 1⁄2 acre ofwaters of the United States;

(2) For public linear transportationprojects in tidal waters or non-tidalwetlands adjacent to tidal waters,provided the discharge does not causethe loss of greater than 1⁄3 acre of watersof the United States and the length offill for the crossing in waters of theUnited States does not exceed 200 linearfeet, or;

(3) For private linear transportationprojects in all waters of the UnitedStates, provided the discharge does notcause the loss of greater than 1⁄3 acre ofwaters of the United States and thelength of fill for the crossing in watersof the United States does not exceed 200linear feet;

b. The permittee must notify theDistrict Engineer in accordance withGeneral Condition 13 if any of thefollowing criteria are met:

(1) The discharge causes the loss ofgreater than 1⁄10 acre of waters of theUnited States; or

(2) There is a discharge in a specialaquatic site, including wetlands;

c. The notification must include acompensatory mitigation proposal tooffset permanent losses of waters of theUnited States to ensure that those lossesresult only in minimal adverse effects tothe aquatic environment and astatement describing how temporarylosses of waters of the United States willbe minimized to the maximum extentpracticable;

d. For discharges in special aquaticsites, including wetlands, thenotification must include a delineationof the affected special aquatic sites;

e. The width of the fill is limited tothe minimum necessary for the crossing;

f. This permit does not authorizestream channelization, and theauthorized activities must not causemore than minimal changes to thehydraulic flow characteristics of thestream, increase flooding, or cause morethan minimal degradation of waterquality of any stream (see GeneralConditions 9 and 21);

g. This permit cannot be used toauthorize non-linear features commonlyassociated with transportation projects,such as vehicle maintenance or storagebuildings, parking lots, train stations, oraircraft hangars; and

h. The crossing is a single andcomplete project for crossing a water ofthe United States. Where a road segment(i.e., the shortest segment of a road withindependent utility that is part of alarger project) has multiple crossings ofstreams (several single and completeprojects) the Corps will considerwhether it should use its discretionaryauthority to require an individualpermit. (Sections 10 and 404)

Note: Some discharges for the constructionof farm roads, forest roads, or temporaryroads for moving mining equipment may beeligible for an exemption from the need fora Section 404 permit (see 33 CFR 323.4).

27. Stream and Wetland RestorationActivities. Activities in waters of theUnited States associated with therestoration of former waters, theenhancement of degraded tidal and non-tidal wetlands and riparian areas, thecreation of tidal and non-tidal wetlandsand riparian areas, and the restorationand enhancement of non-tidal streamsand non-tidal open water areas asfollows:

(a) The activity is conducted on:(1) Non-Federal public lands and

private lands, in accordance with theterms and conditions of a bindingwetland enhancement, restoration, orcreation agreement between thelandowner and the U.S. Fish andWildlife Service (FWS) or the NaturalResources Conservation Service (NRCS)or voluntary wetland restoration,enhancement, and creation actionsdocumented by the NRCS pursuant toNRCS regulations; or

(2) Any Federal land; or(3) Reclaimed surface coal mined

lands, in accordance with a SurfaceMining Control and Reclamation Actpermit issued by the Office of SurfaceMining or the applicable state agency(the future reversion does not apply tostreams or wetlands created, restored, orenhanced as mitigation for the miningimpacts, nor naturally due to hydrologicor topographic features, nor for amitigation bank); or

(4) Any private or public land;(b) Notification: For activities on any

private or public land that are notdescribed by paragraphs (a)(1), (a)(2), or(a)(3) above, the permittee must notifythe District Engineer in accordance withGeneral Condition 13; and

(c) Only native plant species shouldbe planted at the site, if permittee isvegetating the project site.

Activities authorized by this NWPinclude, but are not limited to: theremoval of accumulated sediments; theinstallation, removal, and maintenanceof small water control structures, dikes,and berms; the installation of currentdeflectors; the enhancement,restoration, or creation of riffle and poolstream structure; the placement of in-stream habitat structures; modificationsof the stream bed and/or banks torestore or create stream meanders; thebackfilling of artificial channels anddrainage ditches; the removal of existingdrainage structures; the construction ofsmall nesting islands; the constructionof open water areas; activities needed toreestablish vegetation, including



plowing or discing for seed bedpreparation; mechanized landclearing toremove undesirable vegetation; andother related activities.

This NWP does not authorize theconversion of a stream to anotheraquatic use, such as the creation of animpoundment for waterfowl habitat.This NWP does not authorize streamchannelization. This NWP does notauthorize the conversion of naturalwetlands to another aquatic use, such ascreation of waterfowl impoundmentswhere a forested wetland previouslyexisted. However, this NWP authorizesthe relocation of non-tidal waters,including non-tidal wetlands, on theproject site provided there are net gainsin aquatic resource functions andvalues. For example, this NWP mayauthorize the creation of an open waterimpoundment in a non-tidal emergentwetland, provided the non-tidalemergent wetland is replaced bycreating that wetland type on the projectsite. This NWP does not authorize therelocation of tidal waters or theconversion of tidal waters, includingtidal wetlands, to other aquatic uses,such as the conversion of tidal wetlandsinto open water impoundments.

Reversion. For enhancement,restoration, and creation projectsconducted under paragraphs (a)(2) and(a)(4), this NWP does not authorize anyfuture discharge of dredged or fillmaterial associated with the reversion ofthe area to its prior condition. In suchcases a separate permit would berequired for any reversion. Forrestoration, enhancement, and creationprojects conducted under paragraphs(a)(1) and (a)(3), this NWP alsoauthorizes any future discharge ofdredged or fill material associated withthe reversion of the area to itsdocumented prior condition and use(i.e., prior to the restoration,enhancement, or creation activities)within five years after expiration of alimited term wetland restoration orcreation agreement or permit, even if thedischarge occurs after this NWP expires.This NWP also authorizes the reversionof wetlands that were restored,enhanced, or created on prior-convertedcropland that has not been abandoned,in accordance with a binding agreementbetween the landowner and NRCS orFWS (even though the restoration,enhancement, or creation activity didnot require a Section 404 permit). Thefive-year reversion limit does not applyto agreements without time limitsreached under paragraph (a)(1). Theprior condition will be documented inthe original agreement or permit, andthe determination of return to priorconditions will be made by the Federal

agency or appropriate State agencyexecuting the agreement or permit. Priorto any reversion activity, the permitteeor the appropriate Federal or Stateagency must notify the District Engineerand include the documentation of theprior condition. Once an area hasreverted back to its prior physicalcondition, it will be subject to whateverthe Corps regulatory requirements willbe at that future date. (Sections 10 and404)

Note: Compensatory mitigation is notrequired for activities authorized by thisNWP, provided the authorized work resultsin a net increase in aquatic resourcefunctions and values in the project area. ThisNWP can be used to authorize compensatorymitigation projects, including mitigationbanks, provided the permittee notifies theDistrict Engineer in accordance with GeneralCondition 13, and the project includescompensatory mitigation for impacts towaters of the United States caused by theauthorized work. However, this NWP doesnot authorize the reversion of an area usedfor a compensatory mitigation project to itsprior condition. NWP 27 can be used toauthorize impacts at a mitigation bank, butonly in circumstances where it has beenapproved under the Interagency FederalMitigation Banks Guidelines.

39. Residential, Commercial, andInstitutional Developments. Dischargesof dredged or fill material into non-tidalwaters of the United States, excludingnon-tidal wetlands adjacent to tidalwaters, for the construction orexpansion of residential, commercial,and institutional building foundationsand building pads and attendantfeatures that are necessary for the useand maintenance of the structures.Attendant features may include, but arenot limited to, roads, parking lots,garages, yards, utility lines, stormwatermanagement facilities, and recreationfacilities such as playgrounds, playingfields, and golf courses (provided thegolf course is an integral part of theresidential development). Theconstruction of new ski areas or oil andgas wells is not authorized by this NWP.Residential developments includemultiple and single unit developments.Examples of commercial developmentsinclude retail stores, industrial facilities,restaurants, business parks, andshopping centers. Examples ofinstitutional developments includeschools, fire stations, government officebuildings, judicial buildings, publicworks buildings, libraries, hospitals,and places of worship. The activitieslisted above are authorized, providedthe activities meet all of the followingcriteria:

a. The discharge does not cause theloss of greater than 1⁄2 acre of non-tidalwaters of the United States, excluding

non-tidal wetlands adjacent to tidalwaters;

b. The discharge does not cause theloss of greater than 300 linear feet ofstream bed;

c. The permittee must notify theDistrict Engineer in accordance withGeneral Condition 13, if any of thefollowing criteria are met:

(1) The discharge causes the loss ofgreater than 1⁄10 acre of non-tidal watersof the United States, excluding non-tidalwetlands adjacent to tidal waters; or

(2) The discharge causes the loss ofany open waters, including perennial orintermittent streams, below the ordinaryhigh water mark (see Note, below).

d. For discharges in special aquaticsites, including wetlands, thenotification must include a delineationof affected special aquatic sites;

e. The discharge is part of a single andcomplete project;

f. The permittee must avoid andminimize discharges into waters of theUnited States at the project site to themaximum extent practicable, and thenotification, when required, mustinclude a written statement explaininghow avoidance and minimization oflosses of waters of the United Stateswere achieved on the project site.Compensatory mitigation will normallybe required to offset the losses of watersof the United States. (See GeneralCondition 19.) The notification mustalso include a compensatory mitigationproposal for offsetting unavoidablelosses of waters of the United States. Ifan applicant asserts that the adverseeffects of the project are minimalwithout mitigation, then the applicantmay submit justification explaining whycompensatory mitigation should not berequired for the District Engineer’sconsideration;

g. When this NWP is used inconjunction with any other NWP, anycombined total permanent loss of watersof the United States exceeding 1⁄10 acrerequires that the permittee notify theDistrict Engineer in accordance withGeneral Condition 13;

h. Any work authorized by this NWPmust not cause more than minimaldegradation of water quality or morethan minimal changes to the flowcharacteristics of any stream (seeGeneral Conditions 9 and 21);

i. For discharges causing the loss of1⁄10 acre or less of waters of the UnitedStates, the permittee must submit areport, within 30 days of completion ofthe work, to the District Engineer thatcontains the following information: (1)The name, address, and telephonenumber of the permittee; (2) Thelocation of the work; (3) A descriptionof the work; (4) The type and acreage of



the loss of waters of the United States(e.g., 1⁄12 acre of emergent wetlands);and (5) The type and acreage of anycompensatory mitigation used to offsetthe loss of waters of the United States(e.g., 1⁄12 acre of emergent wetlandscreated on-site);

j. If there are any open waters orstreams within the project area, thepermittee will establish and maintain, tothe maximum extent practicable,wetland or upland vegetated buffersnext to those open waters or streamsconsistent with General Condition 19.Deed restrictions, conservationeasements, protective covenants, orother means of land conservation andpreservation are required to protect andmaintain the vegetated buffersestablished on the project site; and

k. Stream channelization or streamrelocation downstream of the point onthe stream where the annual averageflow is 1 cubic foot per second is notauthorized by this NWP.

Only residential, commercial, andinstitutional activities with structureson the foundation(s) or building pad(s),as well as the attendant features, areauthorized by this NWP. Thecompensatory mitigation proposalrequired in paragraph (f) of this NWPmay be either conceptual or detailed.The wetland or upland vegetated bufferrequired in paragraph (j) of this NWPwill normally be 25 to 50 feet wide oneach side of the stream, but the DistrictEngineer may require wider vegetatedbuffers to address documented waterquality concerns. The required wetlandor upland vegetated buffer is part of theoverall compensatory mitigationrequirement for this NWP. If the projectsite was previously used for agriculturalpurposes and the farm owner/operatorused NWP 40 to authorize activities inwaters of the United States to increaseproduction or construct farm buildings,NWP 39 cannot be used by thedeveloper to authorize additionalactivities in waters of the United Stateson the project site in excess of theacreage limit for NWP 39 (i.e., thecombined acreage loss authorized underNWPs 39 and 40 cannot exceed 1⁄2 acre).

Subdivisions: For any real estatesubdivision created or subdivided afterOctober 5, 1984, a notification pursuantto paragraph (c) of this NWP is requiredfor any discharge which would causethe aggregate total loss of waters of theUnited States for the entire subdivisionto exceed 1⁄10 acre. Any discharge in anyreal estate subdivision which wouldcause the aggregate total loss of watersof the United States in the subdivisionto exceed 1⁄2 acre is not authorized bythis NWP, unless the District Engineerexempts a particular subdivision or

parcel by making a writtendetermination that the individual andcumulative adverse environmentaleffects would be minimal and theproperty owner had, after October 5,1984, but prior to July 21, 1999,committed substantial resources inreliance on NWP 26 with regard to asubdivision, in circumstances where itwould be inequitable to frustrate theproperty owner’s investment-backedexpectations. Once the exemption isestablished for a subdivision,subsequent lot development byindividual property owners mayproceed using NWP 39. For thepurposes of NWP 39, the term ‘‘realestate subdivision’’ shall be interpretedto include circumstances where alandowner or developer divides a tractof land into smaller parcels for thepurpose of selling, conveying,transferring, leasing, or developing saidparcels. This would include the entirearea of a residential, commercial, orother real estate subdivision, includingall parcels and parts thereof. (Sections10 and 404)

Note: Areas where there is no wetlandvegetation are determined by the presence orabsence of an ordinary high water mark orbed and bank. Areas that are waters of theUnited States based on this criteria wouldrequire a PCN even though water isinfrequently present in the stream channel(except for ephemeral waters).

40. Agricultural Activities. Dischargesof dredged or fill material into non-tidalwaters of the United States, excludingnon-tidal wetlands adjacent to tidalwaters, for the purpose of improvingagricultural production and theconstruction of building pads for farmbuildings. Authorized activities includethe installation, placement, orconstruction of drainage tiles, ditches,or levees; mechanized landclearing;land leveling; the relocation of existingserviceable drainage ditches constructedin waters of the United States; andsimilar activities, provided thepermittee complies with the followingterms and conditions:

a. For discharges into non-tidalwetlands to improve agriculturalproduction, the following criteria mustbe met if the permittee is a USDAprogram participant:

(1) The permittee must obtain acategorical minimal effects exemption,minimal effect exemption, or mitigationexemption from NRCS in accordancewith the provisions of the Food SecurityAct of 1985, as amended (16 U.S.C. 3801et seq.);

(2) The discharge into non-tidalwetlands does not result in the loss ofgreater than 1⁄2 acre of non-tidalwetlands on a farm tract;

(3) The permittee must have an NRCS-certified wetland delineation;

(4) The permittee must implement anNRCS-approved compensatorymitigation plan that fully offsetswetland losses, if required; and

(5) The permittee must submit areport, within 30 days of completion ofthe authorized work, to the DistrictEngineer that contains the followinginformation: (a) The name, address, andtelephone number of the permittee; (b)The location of the work; (c) Adescription of the work; (d) The typeand acreage (or square feet) of the lossof wetlands (e.g., 1⁄3 acre of emergentwetlands); and (e) The type, acreage (orsquare feet), and location ofcompensatory mitigation (e.g., 1⁄3 acre ofemergent wetlands on the farm tract); or

b. For discharges into non-tidalwetlands to improve agriculturalproduction, the following criteria mustbe met if the permittee is not a USDAprogram participant (or a USDAprogram participant for which theproposed work does not qualify forauthorization under paragraph (a) of thisNWP):

(1) The discharge into non-tidalwetlands does not result in the loss ofgreater than 1⁄2 acre of non-tidalwetlands on a farm tract;

(2) The permittee must notify theDistrict Engineer in accordance withGeneral Condition 13, if the dischargeresults in the loss of greater than 1⁄10

acre of non-tidal wetlands;(3) The notification must include a

delineation of affected wetlands; and(4) The notification must include a

compensatory mitigation proposal tooffset losses of waters of the UnitedStates; or

c. For the construction of buildingpads for farm buildings, the dischargedoes not cause the loss of greater than1⁄2 acre of non-tidal wetlands that werein agricultural production prior toDecember 23, 1985, (i.e., farmedwetlands) and the permittee must notifythe District Engineer in accordance withGeneral Condition 13; or

d. Any activity in other waters of theUnited States is limited to the relocationof existing serviceable drainage ditchesconstructed in non-tidal streams. ThisNWP does not authorize the relocationof greater than 300 linear feet of existingserviceable drainage ditches constructedin non-tidal streams; and

e. Activities located in 100-yearfloodplains identified by FEMA’s FloodInsurance Rate Maps or FEMA-approvedlocal floodplain maps must comply withGeneral Condition 26.

The term ‘‘farm tract’’ refers to aparcel of land identified by the FarmService Agency. The Corps will identify



other waters of the United States on thefarm tract. NRCS will determine if aproposed agricultural activity meets theterms and conditions of paragraph (a) ofthis NWP, except as provided below.For those activities that requirenotification, the District Engineer willdetermine if a proposed agriculturalactivity is authorized by paragraphs (b),(c), and/or (d) of this NWP. USDAprogram participants requestingauthorization for discharges of dredgedor fill material into waters of the UnitedStates authorized by paragraphs (c) or(d) of this NWP, in addition toparagraph (a), must notify the DistrictEngineer in accordance with GeneralCondition 13 and the District Engineerwill determine if the entire single andcomplete project is authorized by thisNWP. Discharges of dredged or fillmaterial into waters of the United Statesassociated with completing requiredcompensatory mitigation are authorizedby this NWP. However, total impacts,including other authorized impactsunder this NWP, may not exceed the 1⁄2acre limit of this NWP. This NWP doesnot affect, or otherwise regulate,discharges associated with agriculturalactivities when the discharge qualifiesfor an exemption under Section 404(f) ofthe Clean Water Act, even though acategorical minimal effects exemption,minimal effect exemption, or mitigationexemption from NRCS pursuant to theFood Security Act of 1985, as amended,may be required. Activities authorizedby paragraphs (a) through (d) may notexceed a total of 1⁄2 acre on a single farmtract. Activities authorized byparagraphs (c) and (d) are not includedin the 1⁄2 acre limit for the farm tract. Ifthe site was used for agriculturalpurposes and the farm owner/operatorused either paragraphs (a), (b), or (c) ofthis NWP to authorize activities inwaters of the United States to increaseagricultural production or constructfarm buildings, and the currentlandowner wants to use NWP 39 toauthorize residential, commercial, orindustrial development activities inwaters of the United States on the site,the combined acreage loss authorized byNWPs 39 and 40 cannot exceed 1⁄2 acre.(Section 404)

41. Reshaping Existing DrainageDitches. Discharges of dredged or fillmaterial into non-tidal waters of theUnited States, excluding non-tidalwetlands adjacent to tidal waters, tomodify the cross-sectional configurationof currently serviceable drainage ditchesconstructed in these waters. Thereshaping of the ditch cannot increasedrainage capacity beyond the originaldesign capacity or expand the area

drained by the ditch as originallydesigned (i.e., the capacity of the ditchmust be the same as originally designedand it cannot drain additional wetlandsor other waters of the United States).Compensatory mitigation is not requiredbecause the work is designed to improvewater quality (e.g., by regrading thedrainage ditch with gentler slopes,which can reduce erosion, increasegrowth of vegetation, increase uptake ofnutrients and other substances byvegetation, etc.). The permittee mustnotify the District Engineer inaccordance with General Condition 13,if greater than 500 linear feet of drainageditch will be reshaped. Materialresulting from excavation may not bepermanently sidecast into waters butmay be temporarily sidecast (up to threemonths) into waters of the UnitedStates, provided the material is notplaced in such a manner that it isdispersed by currents or other forces.The District Engineer may extend theperiod of temporary sidecasting not toexceed a total of 180 days, whereappropriate. This NWP does not applyto reshaping drainage ditchesconstructed in uplands, since theseareas are not waters of the United States,and thus no permit from the Corps isrequired, or to the maintenance ofexisting drainage ditches to theiroriginal dimensions and configuration,which does not require a Section 404permit (see 33 CFR 323.4(a)(3)). ThisNWP does not authorize the relocationof drainage ditches constructed inwaters of the United States; the locationof the centerline of the reshapeddrainage ditch must be approximatelythe same as the location of thecenterline of the original drainage ditch.This NWP does not authorize streamchannelization or stream relocationprojects. (Section 404)

42. Recreational Facilities. Dischargesof dredged or fill material into non-tidalwaters of the United States, excludingnon-tidal wetlands adjacent to tidalwaters, for the construction orexpansion of recreational facilities,provided the activity meets all of thefollowing criteria:

a. The discharge does not cause theloss of greater than 1⁄2 acre of non-tidalwaters of the United States, excludingnon-tidal wetlands adjacent to tidalwaters;


c. For discharges causing the loss ofgreater than 1⁄10 acre of non-tidal watersof the United States, the permitteenotifies the District Engineer inaccordance with General Condition 13;

d. For discharges in special aquaticsites, including wetlands, thenotification must include a delineationof affected special aquatic sites;

e. The discharge is part of a single andcomplete project; and

f. Compensatory mitigation willnormally be required to offset the lossesof waters of the United States. Thenotification must also include acompensatory mitigation proposalwhich provides for 1:1 replacement tooffset authorized losses of waters of theUnited States.

For the purposes of this NWP, theterm ‘‘recreational facility’’ is defined asa recreational activity that is integratedinto the natural landscape and does notsubstantially change preconstructiongrades or deviate from natural landscapecontours. For the purpose of this permit,the primary function of recreationalfacilities does not include the use ofmotor vehicles, buildings, or impervioussurfaces. Examples of recreationalfacilities that may be authorized by thisNWP include: hiking trails, bike paths,horse paths, nature centers, andcampgrounds (excluding trailer parks).The construction or expansion of golfcourses and the expansion of ski areasmay be authorized by this NWP,provided the golf course or ski area doesnot substantially deviate from naturallandscape contours and is designed tominimize adverse effects to waters ofthe United States and riparian areasthrough the use of such practices asintegrated pest management, adequatestormwater management facilities,vegetated buffers, reduced fertilizer use,etc. The facility must have an adequatewater quality management plan inaccordance with General Condition 9,such as a stormwater managementfacility, to ensure that the recreationalfacility results in no substantial adverseeffects to water quality. This NWP alsoauthorizes the construction orexpansion of small support facilities,such as maintenance and storagebuildings and stables, that are directlyrelated to the recreational activity. ThisNWP does not authorize otherbuildings, such as hotels, restaurants,etc. The construction or expansion ofplaying fields (e.g., baseball, soccer, orfootball fields), basketball and tenniscourts, racetracks, stadiums, arenas, andthe construction of new ski areas are notauthorized by this NWP. (Section 404)

43. Stormwater ManagementFacilities. Discharges of dredged or fillmaterial into non-tidal waters of theUnited States, excluding non-tidalwetlands adjacent to tidal waters, for theconstruction and maintenance ofstormwater management facilities,including activities for the excavation of



stormwater ponds/facilities, detentionbasins, and retention basins; theinstallation and maintenance of watercontrol structures, outfall structures andemergency spillways; and themaintenance dredging of existingstormwater management ponds/facilities and detention and retentionbasins, provided the activity meets all ofthe following criteria:

a. The discharge for the constructionof new stormwater managementfacilities does not cause the loss ofgreater than 1⁄2 acre of non-tidal watersof the United States, excluding non-tidalwetlands adjacent to tidal waters;


c. The discharge of dredged or fillmaterial for the construction of newstormwater management facilities inperennial streams is not authorized;

d. For discharges or excavation for theconstruction of new stormwatermanagement facilities or for themaintenance of existing stormwatermanagement facilities causing the lossof greater than 1⁄10 acre of non-tidalwaters, excluding non-tidal wetlandsadjacent to tidal waters, the permitteenotifies the District Engineer inaccordance with General Condition 13.In addition, the notification mustinclude:

(1) A maintenance plan. Themaintenance plan should be inaccordance with State and localrequirements, if any such requirementsexist;

(2) For discharges in special aquaticsites, including wetlands andsubmerged aquatic vegetation, thenotification must include a delineationof affected areas; and

(3) A compensatory mitigationproposal that offsets the loss of watersof the United States. Maintenance inconstructed areas will not requiremitigation provided such maintenanceis accomplished in designatedmaintenance areas and not withincompensatory mitigation areas (i.e.,district engineers may designate non-maintenance areas, normally at thedownstream end of the stormwatermanagement facility, in existingstormwater management facilities). (Nomitigation will be required for activitieswhich are exempt from Section 404permit requirements);

e. The permittee must avoid andminimize discharges into waters of theUnited States at the project site to themaximum extent practicable, and thenotification must include a writtenstatement to the District Engineerdetailing compliance with thiscondition (i.e., why the discharge must

occur in waters of the United States andwhy additional minimization cannot beachieved);

f. The stormwater managementfacility must comply with GeneralCondition 21 and be designed using bestmanagement practices (BMPs) andwatershed protection techniques.Examples may include forebays (deeperareas at the upstream end of thestormwater management facility thatwould be maintained throughexcavation), vegetated buffers, andsiting considerations to minimizeadverse effects to aquatic resources.Another example of a BMP would bebioengineering methods incorporatedinto the facility design to benefit waterquality and minimize adverse effects toaquatic resources from storm flows,especially downstream of the facility,that provide, to the maximum extentpracticable, for long term aquaticresource protection and enhancement;

g. Maintenance excavation will be inaccordance with an approvedmaintenance plan and will not exceedthe original contours of the facility asapproved and constructed; and

h. The discharge is part of a singleand complete project. (Section 404)

44. Mining Activities. Discharges ofdredged or fill material into: (i) Isolatedwaters, streams where the annualaverage flow is 1 cubic foot per secondor less, and non-tidal wetlands adjacentto headwater streams, for aggregatemining (i.e., sand, gravel, and crushedand broken stone) and associatedsupport activities; (ii) lower perennialstreams, excluding wetlands adjacent tolower perennial streams, for aggregatemining activities (support activities inlower perennial streams or adjacentwetlands are not authorized by thisNWP); and/or (iii) isolated waters andnon-tidal wetlands adjacent toheadwater streams, for hard rock/mineral mining activities (i.e.,extraction of metalliferous ores fromsubsurface locations) and associatedsupport activities, provided thedischarge meets the following criteria:

a. The mined area within waters ofthe United States, plus the acreage lossof waters of the United States resultingfrom support activities, cannot exceed1⁄2 acre;

b. The permittee must avoid andminimize discharges into waters of theUnited States at the project site to themaximum extent practicable, and thenotification must include a writtenstatement detailing compliance withthis condition (i.e., why the dischargemust occur in waters of the UnitedStates and why additional minimizationcannot be achieved);

c. In addition to General Conditions17 and 20, activities authorized by thispermit must not substantially alter thesediment characteristics of areas ofconcentrated shellfish beds or fishspawning areas. Normally, themandated water quality managementplan should address these impacts;

d. The permittee must implementnecessary measures to prevent increasesin stream gradient and water velocitiesand to prevent adverse effects (e.g., headcutting, bank erosion) to upstream anddownstream channel conditions;

e. Activities authorized by this permitmust not result in adverse effects on thecourse, capacity, or condition ofnavigable waters of the United States;

f. The permittee must utilize measuresto minimize downstream turbidity;

g. Wetland impacts must becompensated through mitigationapproved by the Corps;

h. Beneficiation and mineralprocessing for hard rock/mineral miningactivities may not occur within 200 feetof the ordinary high water mark of anyopen waterbody. Although the Corpsdoes not regulate discharges from theseactivities, a Clean Water Act Section 402permit may be required;

i. All activities authorized by thisNWP must comply with GeneralConditions 9 and 21. Further, theDistrict Engineer may requiremodifications to the required waterquality management plan to ensure thatthe authorized work results in minimaladverse effects to water quality;

j. Except for aggregate miningactivities in lower perennial streams, noaggregate mining can occur withinstream beds where the average annualflow is greater than 1 cubic foot persecond or in waters of the United Stateswithin 100 feet of the ordinary highwater mark of headwater streamsegments where the average annual flowof the stream is greater than 1 cubic footper second (aggregate mining can occurin areas immediately adjacent to theordinary high water mark of a streamwhere the average annual flow is 1cubic foot per second or less);

k. Single and complete project: Thedischarge must be for a single andcomplete project, including supportactivities. Discharges of dredged or fillmaterial into waters of the United Statesfor multiple mining activities on severaldesignated parcels of a single andcomplete mining operation can beauthorized by this NWP provided the 1⁄2acre limit is not exceeded; and

l. Notification: The permittee mustnotify the District Engineer inaccordance with General Condition 13.The notification must include: (1) Adescription of waters of the United



States adversely affected by the project;(2) A written statement to the DistrictEngineer detailing compliance withparagraph (b), above (i.e., why thedischarge must occur in waters of theUnited States and why additionalminimization cannot be achieved); (3) Adescription of measures taken to ensurethat the proposed work complies withparagraphs (c) through (f), above; and (4)A reclamation plan (for aggregatemining in isolated waters and non-tidalwetlands adjacent to headwaters andhard rock/mineral mining only).

This NWP does not authorize hardrock/mineral mining, including placermining, in streams. No hard rock/mineral mining can occur in waters ofthe United States within 100 feet of theordinary high water mark of headwaterstreams. The terms ‘‘headwaters’’ and‘‘isolated waters’’ are defined at 33 CFR330.2(d) and (e), respectively. For thepurposes of this NWP, the term ‘‘lowerperennial stream’’ is defined as follows:‘‘A stream in which the gradient is lowand water velocity is slow, there is notidal influence, some water flowsthroughout the year, and the substrateconsists mainly of sand and mud.’’(Sections 10 and 404)

C. Nationwide Permit GeneralConditions

The following general conditionsmust be followed in order for anyauthorization by an NWP to be valid:

1. Navigation. No activity may causemore than a minimal adverse effect onnavigation.

2. Proper Maintenance. Any structureor fill authorized shall be properlymaintained, including maintenance toensure public safety.

3. Soil Erosion and SedimentControls. Appropriate soil erosion andsediment controls must be used andmaintained in effective operatingcondition during construction, and allexposed soil and other fills, as well asany work below the ordinary high watermark or high tide line, must bepermanently stabilized at the earliestpracticable date.

4. Aquatic Life Movements. Noactivity may substantially disrupt themovement of those species of aquaticlife indigenous to the waterbody,including those species which normallymigrate through the area, unless theactivity’s primary purpose is toimpound water. Culverts placed instreams must be installed to maintainlow flow conditions.

5. Equipment. Heavy equipmentworking in wetlands must be placed onmats, or other measures must be takento minimize soil disturbance.

6. Regional and Case-By-CaseConditions. The activity must complywith any regional conditions which mayhave been added by the divisionengineer (see 33 CFR 330.4(e)) and withany case specific conditions added bythe Corps or by the State or tribe in itsSection 401 water quality certificationand Coastal Zone Management Actconsistency determination.

7. Wild and Scenic Rivers. No activitymay occur in a component of theNational Wild and Scenic River System;or in a river officially designated byCongress as a ‘‘study river’’ for possibleinclusion in the system, while the riveris in an official study status; unless theappropriate Federal agency, with directmanagement responsibility for suchriver, has determined in writing that theproposed activity will not adverselyaffect the Wild and Scenic Riverdesignation, or study status. Informationon Wild and Scenic Rivers may beobtained from the appropriate Federalland management agency in the area(e.g., National Park Service, U.S. ForestService, Bureau of Land Management,U.S. Fish and Wildlife Service).

8. Tribal Rights. No activity or itsoperation may impair reserved tribalrights, including, but not limited to,reserved water rights and treaty fishingand hunting rights.

9. Water Quality. (a) In certain Statesand tribal lands an individual 401 waterquality certification must be obtained orwaived (See 33 CFR 330.4(c)).

(b) For NWPs 12, 14, 17, 18, 32, 39,40, 42, 43, and 44, where the State ortribal 401 certification (eithergenerically or individually) does notrequire or approve a water qualitymanagement plan, the permittee mustinclude design criteria and techniquesthat will ensure that the authorizedwork does not result in more thanminimal degradation of water quality.An important component of a waterquality management plan includesstormwater management that minimizesdegradation of the downstream aquaticsystem, including water quality. Refer toGeneral Condition 21 for stormwatermanagement requirements. Anotherimportant component of a water qualitymanagement plan is the establishmentand maintenance of vegetated buffersnext to open waters, including streams.Refer to General Condition 19 forvegetated buffer requirements for theNWPs.

10. Coastal Zone Management. Incertain states, an individual state coastalzone management consistencyconcurrence must be obtained or waived(see Section 330.4(d)).

11. Endangered Species. (a) Noactivity is authorized under any NWP

which is likely to jeopardize thecontinued existence of a threatened orendangered species or a speciesproposed for such designation, asidentified under the Federal EndangeredSpecies Act, or which will destroy oradversely modify the critical habitat ofsuch species. Non-federal permitteesshall notify the District Engineer if anylisted species or designated criticalhabitat might be affected or is in thevicinity of the project, or is located inthe designated critical habitat and shallnot begin work on the activity untilnotified by the District Engineer that therequirements of the Endangered SpeciesAct have been satisfied and that theactivity is authorized. For activities thatmay affect Federally-listed endangeredor threatened species or designatedcritical habitat, the notification mustinclude the name(s) of the endangeredor threatened species that may beaffected by the proposed work or thatutilize the designated critical habitatthat may be affected by the proposedwork. As a result of formal or informalconsultation with the FWS or NMFS,the District Engineer may add species-specific regional endangered speciesconditions to the NWPs.

(b) Authorization of an activity by anationwide permit does not authorizethe ‘‘take’’ of a threatened or endangeredspecies as defined under the FederalEndangered Species Act. In the absenceof separate authorization (e.g., an ESASection 10 Permit, a Biological Opinionwith ‘‘incidental take’’ provisions, etc.)from the U.S. Fish and Wildlife Serviceor the National Marine FisheriesService, both lethal and non-lethal‘‘takes’’ of protected species are inviolation of the Endangered Species Act.Information on the location ofthreatened and endangered species andtheir critical habitat can be obtaineddirectly from the offices of the U.S. Fishand Wildlife Service and NationalMarine Fisheries Service or their worldwide web pages athttp://www.fws.gov/r9endspp/endspp.html andhttp://www.nfms.gov/protlres/esahome.html, respectively.

12. Historic Properties. No activitywhich may affect historic propertieslisted, or eligible for listing, in theNational Register of Historic Places isauthorized, until the DE has compliedwith the provisions of 33 CFR part 325,Appendix C. The prospective permitteemust notify the District Engineer if theauthorized activity may affect anyhistoric properties listed, determined tobe eligible, or which the prospectivepermittee has reason to believe may beeligible for listing on the NationalRegister of Historic Places, and shall not



begin the activity until notified by theDistrict Engineer that the requirementsof the National Historic Preservation Acthave been satisfied and that the activityis authorized. Information on thelocation and existence of historicresources can be obtained from the StateHistoric Preservation Office and theNational Register of Historic Places (see33 CFR 330.4(g)). For activities that mayaffect historic properties listed in, oreligible for listing in, the NationalRegister of Historic Places, thenotification must state which historicproperty may be affected by theproposed work or include a vicinitymap indicating the location of thehistoric property.

13. Notification. (a) Timing: Whererequired by the terms of the NWP, theprospective permittee must notify theDistrict Engineer with a preconstructionnotification (PCN) as early as possible.The District Engineer must determine ifthe PCN is complete within 30 days ofthe date of receipt and can request theadditional information necessary tomake the PCN complete only once.However, if the prospective permitteedoes not provide all of the requestedinformation, then the District Engineerwill notify the prospective permitteethat the PCN is still incomplete and thePCN review process will not commenceuntil all of the requested informationhas been received by the DistrictEngineer. The prospective permitteeshall not begin the activity:

(1) Until notified in writing by theDistrict Engineer that the activity mayproceed under the NWP with anyspecial conditions imposed by theDistrict or Division Engineer; or

(2) If notified in writing by the Districtor Division Engineer that an individualpermit is required; or

(3) Unless 45 days have passed fromthe District Engineer’s receipt of thecomplete notification and theprospective permittee has not receivedwritten notice from the District orDivision Engineer. Subsequently, thepermittee’s right to proceed under theNWP may be modified, suspended, orrevoked only in accordance with theprocedure set forth in 33 CFR330.5(d)(2).

(b) Contents of Notification: Thenotification must be in writing andinclude the following information:

(1) Name, address, and telephonenumbers of the prospective permittee;

(2) Location of the proposed project;(3) Brief description of the proposed

project; the project’s purpose; direct andindirect adverse environmental effectsthe project would cause; any otherNWP(s), regional general permit(s), orindividual permit(s) used or intended to

be used to authorize any part of theproposed project or any related activity;and

(4) For NWPs 7, 12, 14, 18, 21, 34, 38,39, 40, 41, 42, and 43, the PCN mustalso include a delineation of affectedspecial aquatic sites, includingwetlands, vegetated shallows (e.g.,submerged aquatic vegetation, seagrassbeds), and riffle and pool complexes(see paragraph 13(f));

(5) For NWP 7, Outfall Structures andMaintenance, the PCN must includeinformation regarding the originaldesign capacities and configurations ofthose areas of the facility wheremaintenance dredging or excavation isproposed.

(6) For NWP 14, LinearTransportation Crossings, the PCN mustinclude a compensatory mitigationproposal to offset permanent losses ofwaters of the United States and astatement describing how temporarylosses of waters of the United States willbe minimized to the maximum extentpracticable.

(7) For NWP 21, Surface Coal MiningActivities, the PCN must include anOffice of Surface Mining (OSM) or state-approved mitigation plan.

(8) For NWP 27, Stream and WetlandRestoration, the PCN must includedocumentation of the prior condition ofthe site that will be reverted by thepermittee.

(9) For NWP 29, Single-FamilyHousing, the PCN must also include:

(i) Any past use of this NWP by theindividual permittee and/or thepermittee’s spouse;

(ii) A statement that the single-familyhousing activity is for a personalresidence of the permittee;

(iii) A description of the entire parcel,including its size, and a delineation ofwetlands. For the purpose of this NWP,parcels of land measuring 1⁄4 acre or lesswill not require a formal on-sitedelineation. However, the applicantshall provide an indication of where thewetlands are and the amount ofwetlands that exists on the property. Forparcels greater than 1⁄4 acre in size, aformal wetland delineation must beprepared in accordance with the currentmethod required by the Corps. (Seeparagraph 13(f));

(iv) A written description of all land(including, if available, legaldescriptions) owned by the prospectivepermittee and/or the prospectivepermittee’s spouse, within a one mileradius of the parcel, in any form ofownership (including any land ownedas a partner, corporation, joint tenant,co-tenant, or as a tenant-by-the-entirety)and any land on which a purchase and

sale agreement or other contract for saleor purchase has been executed;

(10) For NWP 31, Maintenance ofExisting Flood Control Projects, theprospective permittee must either notifythe District Engineer with a PCN priorto each maintenance activity or submita five year (or less) maintenance plan.In addition, the PCN must include all ofthe following:

(i) Sufficient baseline information soas to identify the approved channeldepths and configurations and existingfacilities. Minor deviations areauthorized, provided the approved floodcontrol protection or drainage is notincreased;

(ii) A delineation of any affectedspecial aquatic sites, includingwetlands; and,

(iii) Location of the dredged materialdisposal site.

(11) For NWP 33, TemporaryConstruction, Access, and Dewatering,the PCN must also include a restorationplan of reasonable measures to avoidand minimize adverse effects to aquaticresources.

(12) For NWPs 39, 43, and 44, thePCN must also include a writtenstatement to the District Engineerexplaining how avoidance andminimization of losses of waters of theUnited States were achieved on theproject site.

(13) For NWP 39, Residential,Commercial, and InstitutionalDevelopments, and NWP 42,Recreational Facilities, the PCN mustinclude a compensatory mitigationproposal that offsets unavoidable lossesof waters of the United States orjustification explaining whycompensatory mitigation should not berequired.

(14) For NWP 40, AgriculturalActivities, the PCN must include acompensatory mitigation proposal tooffset losses of waters of the UnitedStates.

(15) For NWP 43, StormwaterManagement Facilities, the PCN mustinclude, for the construction of newstormwater management facilities, amaintenance plan (in accordance withState and local requirements, ifapplicable) and a compensatorymitigation proposal to offset losses ofwaters of the United States.

(16) For NWP 44, Mining Activities,the PCN must include a description ofall waters of the United States adverselyaffected by the project, a description ofmeasures taken to minimize adverseeffects to waters of the United States, adescription of measures taken to complywith the criteria of the NWP, and areclamation plan (for aggregate miningactivities in isolated waters and non-



tidal wetlands adjacent to headwatersand any hard rock/mineral miningactivities).

(17) For activities that may adverselyaffect Federally-listed endangered orthreatened species, the PCN mustinclude the name(s) of those endangeredor threatened species that may beaffected by the proposed work or utilizethe designated critical habitat that maybe affected by the proposed work.

(18) For activities that may affecthistoric properties listed in, or eligiblefor listing in, the National Register ofHistoric Places, the PCN must statewhich historic property may be affectedby the proposed work or include avicinity map indicating the location ofthe historic property.

(19) For NWPs 12, 14, 29, 39, 40, 42,43, and 44, where the proposed workinvolves discharges of dredged or fillmaterial into waters of the United Statesresulting in permanent, above-grade fillswithin 100-year floodplains (asidentified on FEMA’s Flood InsuranceRate Maps or FEMA-approved localfloodplain maps), the notification mustinclude documentation demonstratingthat the proposed work complies withthe appropriate FEMA or FEMA-approved local floodplain constructionrequirements.

(c) Form of Notification: The standardindividual permit application form(Form ENG 4345) may be used as thenotification but must clearly indicatethat it is a PCN and must include all ofthe information required in (b) (1)–(19)of General Condition 13. A lettercontaining the requisite informationmay also be used.

(d) District Engineer’s Decision: Inreviewing the PCN for the proposedactivity, the District Engineer willdetermine whether the activityauthorized by the NWP will result inmore than minimal individual orcumulative adverse environmentaleffects or may be contrary to the publicinterest. The prospective permittee may,optionally, submit a proposedmitigation plan with the PCN toexpedite the process and the DistrictEngineer will consider any proposedcompensatory mitigation the applicanthas included in the proposal indetermining whether the net adverseenvironmental effects to the aquaticenvironment of the proposed work areminimal. If the District Engineerdetermines that the activity complieswith the terms and conditions of theNWP and that the adverse effects on theaquatic environment are minimal, theDistrict Engineer will notify thepermittee and include any conditionsthe District Engineer deems necessary.

Any compensatory mitigationproposal must be approved by theDistrict Engineer prior to commencingwork. If the prospective permittee isrequired to submit a compensatorymitigation proposal with the PCN, theproposal may be either conceptual ordetailed. If the prospective permitteeelects to submit a compensatorymitigation plan with the PCN, theDistrict Engineer will expeditiouslyreview the proposed compensatorymitigation plan. The District Engineermust review the plan within 45 days ofreceiving a complete PCN anddetermine whether the conceptual orspecific proposed mitigation wouldensure no more than minimal adverseeffects on the aquatic environment. Ifthe net adverse effects of the project onthe aquatic environment (afterconsideration of the compensatorymitigation proposal) are determined bythe District Engineer to be minimal, theDistrict Engineer will provide a timelywritten response to the applicant statingthat the project can proceed under theterms and conditions of the nationwidepermit.

If the District Engineer determinesthat the adverse effects of the proposedwork are more than minimal, then hewill notify the applicant either: (1) Thatthe project does not qualify forauthorization under the NWP andinstruct the applicant on the proceduresto seek authorization under anindividual permit; (2) that the project isauthorized under the NWP subject tothe applicant’s submission of amitigation proposal that would reducethe adverse effects on the aquaticenvironment to the minimal level; or (3)that the project is authorized under theNWP with specific modifications orconditions. Where the District Engineerdetermines that mitigation is required inorder to ensure no more than minimaladverse effects on the aquaticenvironment, the activity will beauthorized within the 45-day PCNperiod, including the necessaryconceptual or specific mitigation or arequirement that the applicant submit amitigation proposal that would reducethe adverse effects on the aquaticenvironment to the minimal level.When conceptual mitigation isincluded, or a mitigation plan isrequired under item (2) above, no workin waters of the United States will occuruntil the District Engineer has approveda specific mitigation plan.

(e) Agency Coordination: The DistrictEngineer will consider any commentsfrom Federal and State agenciesconcerning the proposed activity’scompliance with the terms andconditions of the NWPs and the need for

mitigation to reduce the project’sadverse effects on the aquaticenvironment to a minimal level.

For activities requiring notification tothe District Engineer that result in theloss of greater than 1⁄2 acre of waters ofthe United States, the District Engineerwill, upon receipt of a notification,provide immediately (e.g., via facsimiletransmission, overnight mail, or otherexpeditious manner), a copy to theappropriate offices of the Fish andWildlife Service, State natural resourceor water quality agency, EPA, StateHistoric Preservation Officer (SHPO),and, if appropriate, the National MarineFisheries Service. With the exception ofNWP 37, these agencies will then have10 calendar days from the date thematerial is transmitted to telephone orfax the District Engineer notice that theyintend to provide substantive, site-specific comments. If so contacted by anagency, the District Engineer will waitan additional 15 calendar days beforemaking a decision on the notification.The District Engineer will fully consideragency comments received within thespecified time frame, but will provideno response to the resource agency,except as provided below. The DistrictEngineer will indicate in theadministrative record associated witheach notification that the resourceagencies’ concerns were considered. Asrequired by Section 305(b)(4)(B) of theMagnuson-Stevens FisheryConservation and Management Act, theDistrict Engineer will provide aresponse to National Marine FisheriesService within 30 days of receipt of anyEssential Fish Habitat conservationrecommendations. Applicants areencouraged to provide the Corpsmultiple copies of notifications toexpedite agency notification.

(f) Wetlands Delineations: Wetlanddelineations must be prepared inaccordance with the current methodrequired by the Corps. For NWP 29 seeparagraph (b)(9)(iii) for parcels less than1⁄4 acre in size. The permittee may askthe Corps to delineate the specialaquatic site. There may be some delayif the Corps does the delineation.Furthermore, the 45-day period will notstart until the wetland delineation hasbeen completed and submitted to theCorps, where appropriate.

14. Compliance Certification. Everypermittee who has received aNationwide permit verification from theCorps will submit a signed certificationregarding the completed work and anyrequired mitigation. The certificationwill be forwarded by the Corps with theauthorization letter. The certificationwill include: (a) A statement that theauthorized work was done in



accordance with the Corpsauthorization, including any general orspecific conditions; (b) A statement thatany required mitigation was completedin accordance with the permitconditions; and (c) The signature of thepermittee certifying the completion ofthe work and mitigation.

15. Use of Multiple NationwidePermits. The use of more than one NWPfor a single and complete project isprohibited, except when the acreage lossof waters of the United Statesauthorized by the NWPs does notexceed the acreage limit of the NWPwith the highest specified acreage limit.For example, if a road crossing overtidal waters is constructed under NWP14, with associated bank stabilizationauthorized by NWP 13, the maximumacreage loss of waters of the UnitedStates for the total project cannot exceed1⁄3 acre.

16. Water Supply Intakes. No activity,including structures and work innavigable waters of the United States ordischarges of dredged or fill material,may occur in the proximity of a publicwater supply intake except where theactivity is for repair of the public watersupply intake structures or adjacentbank stabilization.

17. Shellfish Beds. No activity,including structures and work innavigable waters of the United States ordischarges of dredged or fill material,may occur in areas of concentratedshellfish populations, unless the activityis directly related to a shellfishharvesting activity authorized by NWP4.

18. Suitable Material. No activity,including structures and work innavigable waters of the United States ordischarges of dredged or fill material,may consist of unsuitable material (e.g.,trash, debris, car bodies, asphalt, etc.)and material used for construction ordischarged must be free from toxicpollutants in toxic amounts (see Section307 of the Clean Water Act).

19. Mitigation. The project must bedesigned and constructed to avoid andminimize adverse effects to waters ofthe United States to the maximumextent practicable at the project site (i.e.,on site). Mitigation will be requiredwhen necessary to ensure that theadverse effects to the aquaticenvironment are minimal. The DistrictEngineer will consider the factorsdiscussed below when determining theacceptability of appropriate andpracticable mitigation necessary tooffset adverse effects on the aquaticenvironment that are more thanminimal.

(a) Compensatory mitigation at aminimum 1:1 ratio will be required for

all wetland impacts requiring a PCN.Consistent with National policy, theDistrict Engineer will establish apreference for restoration of wetlands tomeet the minimum compensatorymitigation ratio, with preservation usedonly in exceptional circumstances.

(b) To be practicable, the mitigationmust be available and capable of beingdone considering costs, existingtechnology, and logistics in light of theoverall project purposes. Examples ofmitigation that may be appropriate andpracticable include, but are not limitedto: reducing the size of the project;establishing and maintaining wetland orupland vegetated buffers to protect openwaters such as streams; and replacinglosses of aquatic resource functions andvalues by creating, restoring, enhancing,or preserving similar functions andvalues, preferably in the samewatershed;

(c) The District Engineer will requirerestoration, creation, enhancement, orpreservation of other aquatic resourcesin order to offset the authorized impactsto the extent necessary to ensure thatthe adverse effects on the aquaticenvironment are minimal. An importantelement of any compensatory mitigationplan for projects in or near streams orother open waters is the establishmentand maintenance, to the maximumextent practicable, of vegetated buffersnext to open waters on the project site.The vegetated buffer should consist ofnative species. The District Engineerwill determine the appropriate width ofthe vegetated buffer and in which casesit will be required. Normally, thevegetated buffer will be 25 to 50 feetwide on each side of the stream, but theDistrict Engineer may require widervegetated buffers to addressdocumented water quality concerns. Ifthere are open waters on the project siteand the District Engineer requirescompensatory mitigation for wetlandimpacts to ensure that the net adverseeffects on the aquatic environment areminimal, any vegetated buffer willcomprise no more than 1⁄3 of theremaining compensatory mitigationacreage after the permanently filledwetlands have been replaced on a one-to-one acreage basis. In addition,compensatory mitigation must addressadverse effects on wetland functionsand values and cannot be used to offsetthe acreage of wetland losses that wouldoccur in order to meet the acreage limitsof some of the NWPs (e.g., for NWP 39,1⁄4 acre of wetlands cannot be created tochange a 1⁄2 acre loss of wetlands to a1⁄4 acre loss; however, 1⁄2 acre of createdwetlands can be used to reduce theimpacts of a 1⁄3 acre loss of wetlands).If the prospective permittee is required

to submit a compensatory mitigationproposal with the PCN, the proposalmay be either conceptual or detailed.

(d) To the extent appropriate,permittees should consider mitigationbanking and other appropriate forms ofcompensatory mitigation. If the DistrictEngineer determines that compensatorymitigation is necessary to offset losses ofwaters of the United States and ensurethat the net adverse effects of theauthorized work on the aquaticenvironment are minimal, consolidatedmitigation approaches, such asmitigation banks, will be the preferredmethod of providing compensatorymitigation, unless the District Engineerdetermines that activity-specificcompensatory mitigation is moreappropriate, based on which is best forthe aquatic environment. These types ofmitigation are preferred because theyinvolve larger blocks of protectedaquatic environment, are more likely tomeet the mitigation goals, and are moreeasily checked for compliance. If amitigation bank or other consolidatedmitigation approach is not available inthe watershed, the District Engineer willconsider other appropriate forms ofcompensatory mitigation to offset thelosses of waters of the United States toensure that the net adverse effects of theauthorized work on the aquaticenvironment are minimal.

20. Spawning Areas. Activities,including structures and work innavigable waters of the United States ordischarges of dredged or fill material, inspawning areas during spawningseasons must be avoided to themaximum extent practicable. Activitiesthat result in the physical destruction(e.g., excavate, fill, or smotherdownstream by substantial turbidity) ofan important spawning area are notauthorized.

21. Management of Water Flows. Tothe maximum extent practicable, theactivity must be designed to maintainpreconstruction downstream flowconditions (e.g., location, capacity, andflow rates). Furthermore, the activitymust not permanently restrict or impedethe passage of normal or expected highflows (unless the primary purpose of thefill is to impound waters) and thestructure or discharge of dredged or fillmaterial must withstand expected highflows. The activity must, to themaximum extent practicable, providefor retaining excess flows from the site,provide for maintaining surface flowrates from the site similar topreconstruction conditions, and mustnot increase water flows from theproject site, relocate water, or redirectwater flow beyond preconstructionconditions. In addition, the activity



must, to the maximum extentpracticable, reduce adverse effects suchas flooding or erosion downstream andupstream of the project site, unless theactivity is part of a larger systemdesigned to manage water flows.

22. Adverse Effects FromImpoundments. If the activity, includingstructures and work in navigable watersof the United States or discharge ofdredged or fill material, creates animpoundment of water, adverse effectson the aquatic system caused by theaccelerated passage of water and/or therestriction of its flow shall beminimized to the maximum extentpracticable.

23. Waterfowl Breeding Areas.Activities, including structures andwork in navigable waters of the UnitedStates or discharges of dredged or fillmaterial, into breeding areas formigratory waterfowl must be avoided tothe maximum extent practicable.

24. Removal of Temporary Fills. Anytemporary fills must be removed in theirentirety and the affected areas returnedto their preexisting elevation.

25. Designated Critical ResourceWaters. Critical resource waters include,NOAA-designated marine sanctuaries,National Estuarine Research Reserves,National Wild and Scenic Rivers,critical habitat for Federally listedthreatened and endangered species,coral reefs, State natural heritage sites,and outstanding national resourcewaters or other waters officiallydesignated by a State as havingparticular environmental or ecologicalsignificance and identified by theDistrict Engineer after notice andopportunity for public comment. TheDistrict Engineer may also designateadditional critical resource waters afternotice and opportunity for comment.

(a) Except as noted below, dischargesof dredged or fill material into waters ofthe United States are not authorized byNWPs 7, 12, 14, 16, 17, 21, 29, 31, 35,39, 40, 42, 43, and 44 for any activitywithin, or directly affecting, criticalresource waters, including wetlandsadjacent to such waters. Discharges ofdredged or fill materials into waters ofthe United States may be authorized bythe above NWPs in National Wild andScenic Rivers if the activity complieswith General Condition 7. Further, suchdischarges may be authorized indesignated critical habitat for Federallylisted threatened or endangered speciesif the activity complies with GeneralCondition 11 and the U.S. Fish andWildlife Service or the National MarineFisheries Service has concurred in adetermination of compliance with thiscondition.

(b) For NWPs 3, 8, 10, 13, 15, 18, 19,22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and38, notification is required inaccordance with General Condition 13,for any activity proposed in thedesignated critical resource watersincluding wetlands adjacent to thosewaters. The District Engineer mayauthorize activities under these NWPsonly after he determines that theimpacts to the critical resource waterswill be no more than minimal.

26. Fills Within 100-Year Floodplains.For purposes of this general condition,100-year floodplains will be identifiedthrough the Federal EmergencyManagement Agency’s (FEMA) FloodInsurance Rate Maps or FEMA-approvedlocal floodplain maps.

(a) Discharges Below Headwaters.Discharges of dredged or fill materialinto waters of the United Statesresulting in permanent, above-grade fillswithin the 100-year floodplain at orbelow the point on a stream where theaverage annual flow is five cubic feetper second (i.e., below headwaters) arenot authorized by NWPs 29, 39, 40, 42,43, and 44. For NWPs 12 and 14, theprospective permittee must notify theDistrict Engineer in accordance withGeneral Condition 13 and thenotification must includedocumentation that any permanent,above-grade fills in waters of the UnitedStates within the 100-year floodplainbelow headwaters comply with FEMAor FEMA-approved local floodplainconstruction requirements.

(b) Discharges in Headwaters (i.e.,above the point on a stream where theaverage annual flow is five cubic feetper second).

(1) Flood Fringe. Discharges ofdredged or fill material into waters ofthe United States resulting inpermanent, above-grade fills within theflood fringe of the 100-year floodplain ofheadwaters are not authorized by NWPs12, 14, 29, 39, 40, 42, 43, and 44, unlessthe prospective permittee notifies theDistrict Engineer in accordance withGeneral Condition 13. The notificationmust include documentation that suchdischarges comply with FEMA orFEMA-approved local floodplainconstruction requirements.

(2) Floodway. Discharges of dredgedor fill material into waters of the UnitedStates resulting in permanent, above-grade fills within the floodway of the100-year floodplain of headwaters arenot authorized by NWPs 29, 39, 40, 42,43, and 44. For NWPs 12 and 14, thepermittee must notify the DistrictEngineer in accordance with GeneralCondition 13 and the notification mustinclude documentation that anypermanent, above grade fills proposed

in the floodway comply with FEMA orFEMA-approved local floodplainconstruction requirements.

D. Further Information

1. District engineers have authority todetermine if an activity complies withthe terms and conditions of an NWP.

2. NWPs do not obviate the need toobtain other Federal, State, or localpermits, approvals, or authorizationsrequired by law.

3. NWPs do not grant any propertyrights or exclusive privileges.

4. NWPs do not authorize any injuryto the property or rights of others.

5. NWPs do not authorize interferencewith any existing or proposed Federalproject.

E. Definitions

Best management practices: BestManagement Practices (BMPs) arepolicies, practices, procedures, orstructures implemented to mitigate theadverse environmental effects onsurface water quality resulting fromdevelopment. BMPs are categorized asstructural or non-structural. A BMPpolicy may affect the limits on adevelopment.

Compensatory mitigation: Forpurposes of Section 10/404,compensatory mitigation is therestoration, creation, enhancement, or inexceptional circumstances, preservationof wetlands and/or other aquaticresources for the purpose ofcompensating for unavoidable adverseimpacts which remain after allappropriate and practicable avoidanceand minimization has been achieved.

Creation: The establishment of awetland or other aquatic resource whereone did not formerly exist.

Enhancement: Activities conducted inexisting wetlands or other aquaticresources which increase one or moreaquatic functions.

Ephemeral stream: An ephemeralstream has flowing water only during,and for a short duration after,precipitation events in a typical year.Ephemeral stream beds are locatedabove the water table year-round.Groundwater is not a source of water forthe stream. Runoff from rainfall is theprimary source of water for stream flow.

Farm tract: A unit of contiguous landunder one ownership which is operatedas a farm or part of a farm.

Flood Fringe: That portion of the 100-year floodplain outside of the floodway(often referred to as ‘‘floodway fringe.’’

Floodway: The area regulated byFederal, state, or local requirements toprovide for the discharge of the baseflood so the cumulative increase inwater surface elevation is no more than



a designated amount (not to exceed onefoot as set by the National FloodInsurance Program) within the 100-yearfloodplain.

Independent utility: A test todetermine what constitutes a single andcomplete project in the Corps regulatoryprogram. A project is considered to haveindependent utility if it would beconstructed absent the construction ofother projects in the project area.Portions of a multi-phase project thatdepend upon other phases of the projectdo not have independent utility. Phasesof a project that would be constructedeven if the other phases are not built canbe considered as separate single andcomplete projects with independentutility.

Intermittent stream: An intermittentstream has flowing water during certaintimes of the year, when groundwaterprovides water for stream flow. Duringdry periods, intermittent streams maynot have flowing water. Runoff fromrainfall is a supplemental source ofwater for stream flow.

Loss of waters of the United States:Waters of the United States that includethe filled area and other waters that arepermanently adversely affected byflooding, excavation, or drainage as aresult of the regulated activity.Permanent adverse effects includepermanent above-grade, at-grade, orbelow-grade fills that change an aquaticarea to dry land, increase the bottomelevation of a waterbody, or change theuse of a waterbody. The acreage of lossof waters of the United States is thethreshold measurement of the impact toexisting waters for determining whethera project may qualify for an NWP; it isnot a net threshold that is calculatedafter considering compensatorymitigation that may be used to offsetlosses of aquatic functions and values.The loss of stream bed includes thelinear feet of stream bed that is filled orexcavated. Waters of the United Statestemporarily filled, flooded, excavated,or drained, but restored topreconstruction contours and elevationsafter construction, are not included inthe measurement of loss of waters of theUnited States.

Non-tidal wetland: A non-tidalwetland is a wetland (i.e., a water of theUnited States) that is not subject to theebb and flow of tidal waters. Thedefinition of a wetland can be found at33 CFR 328.3(b). Non-tidal wetlandscontiguous to tidal waters are locatedlandward of the high tide line (i.e., thespring high tide line).

Open water: An area that, during ayear with normal patterns ofprecipitation, has standing or flowingwater for sufficient duration to establish

an ordinary high water mark. Aquaticvegetation within the area of standing orflowing water is either non-emergent,sparse, or absent. Vegetated shallows areconsidered to be open waters. The term‘‘open water’’ includes rivers, streams,lakes, and ponds. For the purposes ofthe NWPs, this term does not includeephemeral waters.

Perennial stream: A perennial streamhas flowing water year-round during atypical year. The water table is locatedabove the stream bed for most of theyear. Groundwater is the primary sourceof water for stream flow. Runoff fromrainfall is a supplemental source ofwater for stream flow.

Permanent above-grade fill: Adischarge of dredged or fill material intowaters of the United States, includingwetlands, that results in a substantialincrease in ground elevation andpermanently converts part or all of thewaterbody to dry land. Structural fillsauthorized by NWPs 3, 25, 36, etc. arenot included.

Preservation: The protection ofecologically important wetlands or otheraquatic resources in perpetuity throughthe implementation of appropriate legaland physical mechanisms. Preservationmay include protection of upland areasadjacent to wetlands as necessary toensure protection and/or enhancementof the overall aquatic ecosystem.

Restoration: Re-establishment ofwetland and/or other aquatic resourcecharacteristics and function(s) at a sitewhere they have ceased to exist, or existin a substantially degraded state.

Riffle and pool complex: Riffle andpool complexes are special aquatic sitesunder the 404(b)(1) Guidelines. Steepgradient sections of streams aresometimes characterized by riffle andpool complexes. Such stream sectionsare recognizable by their hydrauliccharacteristics. The rapid movement ofwater over a course substrate in rifflesresults in a rough flow, a turbulentsurface, and high dissolved oxygenlevels in the water. Pools are deeperareas associated with riffles. Pools arecharacterized by a slower streamvelocity, a streaming flow, a smoothsurface, and a finer substrate.

Single and complete project: The term‘‘single and complete project’’ is definedat 33 CFR 330.2(i) as the total projectproposed or accomplished by oneowner/developer or partnership or otherassociation of owners/developers (seedefinition of independent utility). Forlinear projects, the ‘‘single and completeproject’’ (i.e., a single and completecrossing) will apply to each crossing ofa separate water of the United States (i.e.,a single waterbody) at that location. Anexception is for linear projects crossing

a single waterbody several times atseparate and distant locations: eachcrossing is considered a single andcomplete project. However, individualchannels in a braided stream or river, orindividual arms of a large, irregularly-shaped wetland or lake, etc., are notseparate waterbodies.

Stormwater management: Stormwatermanagement is the mechanism forcontrolling stormwater runoff for thepurposes of reducing downstreamerosion, water quality degradation, andflooding and mitigating the adverseeffects of changes in land use on theaquatic environment.

Stormwater management facilities:Stormwater management facilities arethose facilities, including but notlimited to, stormwater retention anddetention ponds and BMPs, whichretain water for a period of time tocontrol runoff and/or improve thequality (i.e., by reducing theconcentration of nutrients, sediments,hazardous substances and otherpollutants) of stormwater runoff.

Stream bed: The substrate of thestream channel between the ordinaryhigh water marks. The substrate may bebedrock or inorganic particles that rangein size from clay to boulders. Wetlandscontiguous to the stream bed, butoutside of the ordinary high watermarks, are not considered part of thestream bed.

Stream channelization: Themanipulation of a stream channel toincrease the rate of water flow throughthe stream channel. Manipulation mayinclude deepening, widening,straightening, armoring, or otheractivities that change the stream cross-section or other aspects of streamchannel geometry to increase the rate ofwater flow through the stream channel.A channelized stream remains a waterof the United States, despite themodifications to increase the rate ofwater flow.

Tidal wetland: A tidal wetland is awetland (i.e., a water of the UnitedStates) that is inundated by tidal waters.The definitions of a wetland and tidalwaters can be found at 33 CFR 328.3(b)and 33 CFR 328.3(f), respectively. Tidalwaters rise and fall in a predictable andmeasurable rhythm or cycle due to thegravitational pulls of the moon and sun.Tidal waters end where the rise and fallof the water surface can no longer bepractically measured in a predictablerhythm due to masking by other waters,wind, or other effects. Tidal wetlandsare located channelward of the high tideline (i.e., spring high tide line) and areinundated by tidal waters two times perlunar month, during spring high tides.



Vegetated buffer: A vegetated uplandor wetland area next to rivers, streams,lakes, or other open waters whichseparates the open water fromdeveloped areas, including agriculturalland. Vegetated buffers provide a varietyof aquatic habitat functions and values(e.g., aquatic habitat for fish and otheraquatic organisms, moderation of watertemperature changes, and detritus foraquatic food webs) and help improve ormaintain local water quality. Avegetated buffer can be established bymaintaining an existing vegetated areaor planting native trees, shrubs, andherbaceous plants on land next to open

waters. Mowed lawns are notconsidered vegetated buffers becausethey provide little or no aquatic habitatfunctions and values. The establishmentand maintenance of vegetated buffers isa method of compensatory mitigationthat can be used in conjunction with therestoration, creation, enhancement, orpreservation of aquatic habitats toensure that activities authorized byNWPs result in minimal adverse effectsto the aquatic environment. (SeeGeneral Condition 19.)

Vegetated shallows: Vegetatedshallows are special aquatic sites underthe 404(b)(1) Guidelines. They are areas

that are permanently inundated andunder normal circumstances haverooted aquatic vegetation, such asseagrasses in marine and estuarinesystems and a variety of vascular rootedplants in freshwater systems.

Waterbody: A waterbody is any areathat in a normal year has water flowingor standing above ground to the extentthat evidence of an ordinary high watermark is established. Wetlandscontiguous to the waterbody areconsidered part of the waterbody.

[FR Doc. 00–5194 Filed 3–8–00; 8:45 am]

BILLING CODE 3710–92–P


department of defense...i. overview in response to the july 21, 1999, federal register notice, we...

Documents