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Federal Register
/Vol. 76, No. 32/Wednesday, February 16, 2011/Notices
DEPARTMENT OF DEFENSEDepartment of the Army, Corps ofEngineers
ZRIN 0710–ZA05
Proposal To Reissue and ModifyNationwide Permits
AGENCY
:
Army Corps of Engineers, DoD.
ACTION
:
Notice.
SUMMARY
:
The U.S. Army Corps of Engineers (Corps) is solicitingcomments for the reissuance of theexisting nationwide permits (NWPs),general conditions, and definitions,with some modifications. The Corps isalso proposing to issue two new NWPsand two new general conditions. TheCorps is requesting comment on allaspects of these proposed nationwidepermits. More specifically, the Corps isrequesting comments on options forNWP 21, which authorizes discharges of dredged or fill material into waters of the United States associated withsurface coal mining activities, such asreissuing NWP 21 with modifications ornot reissuing NWP 21. The Corps is alsoseeking comments on whether to reissueNWP 48 with modifications to authorizenew commercial shellfish aquacultureactivities or to issue a separate NWP toauthorize only new commercialshellfish aquaculture activities. Thereissuance process starts with today’spublication of the proposed NWPs inthe
Federal Register
for a 60-daycomment period. The purpose of this
Federal Register
notice is to solicitcomments on the proposed new andmodified NWPs, as well as the NWPgeneral conditions and definitions.Shortly after the publication of this
Federal Register
notice, each Corpsdistrict will publish a public notice tosolicit comments on their proposedregional conditions for the new andmodified NWPs. The comment periodfor these district public notices will be45 days.
DATES
:
Submit comments on or beforeApril 18, 2011.
ADDRESSES
:
You may submit comments,identified by docket number COE–2010–0035 and/or ZRIN 0710–ZA05, byany of the following methods:
Follow theinstructions for submitting comments.
E-mail:NWP2012@usace.army.mil
. Include the docket number, COE–2010–0035, and/or the ZRIN number, 0710–ZA05, in the subject line of the message.
Mail:
U.S. Army Corps of Engineers,Attn: CECW–CO–R, 441 G Street, NW.,Washington, DC 20314–1000.
Hand Delivery/Courier:
Due tosecurity requirements, we cannotreceive comments by hand delivery orcourier.
Instructions:
Direct your comments todocket number COE–2010–0035 and/orZRIN 0710–ZA05. All commentsreceived will be included in the publicdocket without change and may bemade available on-line at
,including anypersonal information provided, unlessthe commenter indicates that thecomment includes information claimedto be Confidential Business Information(CBI) or other information whosedisclosure is restricted by statute. Donot submit information that youconsider to be CBI, or otherwiseprotected, through regulations.gov ore-mail. The regulations.gov Web site isan anonymous access system, whichmeans we will not know your identityor contact information unless youprovide it in the body of your comment.If you send an e-mail directly to theCorps without going throughregulations.gov, your e-mail addresswill be automatically captured andincluded as part of the comment that isplaced in the public docket and madeavailable on the Internet. If you submitan electronic comment, we recommendthat you include your name and othercontact information in the body of yourcomment and with any disk or CD–ROMyou submit. If we cannot read yourcomment because of technicaldifficulties and cannot contact you forclarification, we may not be able toconsider your comment. Electroniccomments should avoid the use of anyspecial characters, any form of encryption, and be free of any defects orviruses.
Docket:
For access to the docket toread background documents orcomments received, go toregulations.gov. All documents in thedocket are listed. Although listed in theindex, some information is not publiclyavailable, such as CBI or otherinformation whose disclosure isrestricted by statute. Certain othermaterial, such as copyrighted material,is not placed on the Internet and will bepublicly available only in hard copyform.
FOR FURTHER INFORMATION CONTACT
:
Mr.Dave Casey at 907–283–3519 or 202–761–5903 or Mr. David Olson at 202–761–4922 or access the U.S. Army Corpsof Engineers Regulatory Home Page at
SUPPLEMENTARY INFORMATION
:
Background
The current nationwide permits(NWPs), which were published in theMarch 12, 2007, issue of the
FederalRegister
(72 FR 11092) expire on March18, 2012. With this
Federal Register
notice, we are beginning the process forreissuing the NWPs so that the reissuedNWPs will be in effect as the currentNWPs expire.Section 404(e) of the Clean Water Actprovides the statutory authority for theSecretary of the Army, after notice andopportunity for public hearing, to issuegeneral permits on a nationwide basisfor any category of activities involvingdischarges of dredged or fill materialinto waters of the United States.Activities authorized by NWPs must besimilar in nature, cause only minimaladverse environmental effects whenperformed separately, and cause onlyminimal cumulative adverse effect onthe aquatic environment. Nationwidepermits can also be issued to authorizeactivities pursuant to Section 10 of theRivers and Harbors Act of 1899. TheNWP program is designed to providetimely authorizations for the regulatedpublic while protecting the Nation’saquatic resources.Today’s proposal to reissue 48 of the49 existing NWPs with somemodifications and to issue two newNWPs reflects the Corps commitment toits environmental protection missionand to aquatic resource protection. Forthe reasons provided below, we areproposing to let one NWP expire andnot reissue it: NWP 47—Pipeline SafetyProgram Designated Time SensitiveInspections and Repairs. We areproposing to revise the text of some of the NWPs, general conditions, anddefinitions so that they are clearer andcan be more easily understood by theregulated public, government personnel,and interested parties, while retainingterms and conditions that protect theaquatic environment. Making the text of the NWPs clearer and easier tounderstand will also facilitatecompliance with these permits, whichwill benefit the aquatic environment.The NWP program allows the Corps toauthorize activities with minimaladverse environmental impacts in atimely manner and protect the aquaticenvironment. The NWP program alsoallows the Corps to focus its limitedresources on more extensive evaluationof projects that have the potential forcausing environmentally damagingadverse effects.Through the NWPs, impacts to theaquatic environment may also receiveadditional protection through regionalconditions, case-specific special
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Federal Register
/Vol. 76, No. 32/Wednesday, February 16, 2011/Notices
conditions, and case-specificdiscretionary authority to requireindividual permits. Nationwide permitsand other general permits help protectthe aquatic environment because permitapplicants often reduce project impactsto meet the restrictive requirements of general permits and receiveauthorization more quickly than theywould through the individual permitprocess.Thirty of the NWPs proposed forreissuance require pre-constructionnotification (PCN) for certain activities.Twenty of those NWPs require PCNs forall activities. Each of the two proposednew NWPs require PCNs. Pre-construction notification requirementsgive the Corps the opportunity toevaluate certain proposed NWPactivities on a case-by-case basis toensure that they will have no more thanminimal adverse effects on the aquaticenvironment, individually andcumulatively. This case-by-case reviewoften results in adding case-specificconditions to the NWP authorization toensure that impacts to the aquaticenvironment are minimal. Review of aPCN may also result in the Corpsasserting discretionary authority torequire an individual permit if thedistrict engineer determines, based onthe information provided in the PCN,that adverse impacts will be more thanminimal, either individually orcumulatively, or there are sufficientconcerns for any of the Corps publicinterest review factors.Regional conditions may be imposed by division engineers to take intoaccount regional differences in aquaticresource functions and services acrossthe country and to restrict or prohibitthe use of NWPs to protect thoseresources. Through regional conditions,a division engineer can modify an NWPto require submission of PCNs forcertain activities. Regional conditionsmay also restrict or prohibit the use of an NWP in certain waters or geographicareas, if the use of that NWP in thosewaters or areas might result in morethan minimal individual or cumulativeadverse effects to the aquaticenvironment.District engineers may impose specialconditions on NWP authorizations toensure that the NWP authorizes onlyactivities that result in minimalindividual and cumulative effects on theaquatic environment and other publicinterest review factors. In addition,special conditions will often includecompensatory mitigation requirementsto reduce the project impacts to theminimal level. Compensatory mitigationmay include the restoration,establishment, enhancement, and/orpreservation of aquatic habitats, as wellas the establishment and maintenance of riparian areas next to streams and otheropen waters. Compensatory mitigationcan be provided through permittee-responsible mitigation, mitigation banks, or in-lieu fee programs.
Process for Reissuing the NWPs
The NWPs reissued on March 12,2007, went into effect on March 19,2007, and expire on March 18, 2012.The reissuance process starts withtoday’s publication of the proposedNWPs in the
Federal Register
for a60-day comment period. Requests for apublic hearing must be submitted inwriting to the address in the
ADDRESSES
section of this notice. These requestsmust state the reason(s) for holding apublic hearing. If we determine that apublic hearing or hearings would assistin making a decision on the issuance of the proposed new NWPs, reissuance of existing NWPs, or the NWP generalconditions or definitions, a 30-dayadvance notice will be published in the
Federal Register
to advise interestedparties of the date(s) and location(s) forthe public hearing(s). Anyannouncement of public hearings wouldalso be posted as a supporting materialin the docket at
as well as theCorps regulatory home page at
Shortly after the publication of this
Federal Register
notice, Corps districtoffices will issue public notices tosolicit comments on proposed regionalconditions. In their district publicnotices, district engineers may alsopropose to suspend or revoke some orall of these NWPs if they have issued,or are proposing to issue, regionalgeneral permits, programmatic generalpermits, or section 404 letters of permission for use in lieu of NWPs. Thecomment period for these district publicnotices will be 45 days.After the comment period has ended,we will review the comments receivedin response to this
Federal Register
notice. Then we will draft the finalNWPs, and those final draft NWPs will be subjected to another review byinterested Federal agencies. The finalissued NWPs will be published in the
Federal Register
by December 2011. Thefinal NWPs will go into effect 90 daysafter their publication. In the past, theschedule normally allowed stategovernments, tribal governments, andEPA a 60-day period for Clean WaterAct Section 401 water qualitycertifications (WQCs) as well as CoastalZone Management Act (CZMA)consistency determinations by states.The change to 90 days is made in orderto meet the requirements of theDepartment of Commerce that requireFederal agencies to provide at least 90days for state governments to make theirCZMA consistency determinations (see15 CFR 930.36(b)). Within this 90-dayperiod, division engineers will alsodevelop regional conditions andsupplemental decision documents.Supplemental decision documentsaddress the environmentalconsiderations related to the use of NWPs in a Corps district. Thesupplemental decision documents willcertify that the NWPs, with any regionalconditions or geographic suspensions orrevocations, will only authorizeactivities within that Corps district thatresult in minimal individual andcumulative adverse effects on theaquatic environment. The regionalconditioning and WQC/CZMAprocesses are discussed below.
Compliance With Section 404(e) of theClean Water Act
The proposed NWPs are issued inaccordance with Section 404(e) of theClean Water Act. These NWPs authorizecategories of activities that are similar innature. The
‘‘
similar in nature
’’
requirement does not mean thatactivities authorized by an NWP must be identical to each other. We believethat the
‘‘
categories of activities that aresimilar in nature
’’
requirement of section404(e) is to be interpreted broadly, forpractical implementation of this generalpermit program. Nationwide permits, aswell as other general permits, areintended to reduce administrative burdens on the Corps and the regulatedpublic, by efficiently authorizingactivities that have minimal adverseenvironmental effects.As for the minimal adverse effectsprovision of section 404(e), the variousterms and conditions of these NWPs,including the provisions in the NWPregulations at 33 CFR 330.1(d) and 33CFR 330.4(e) that allow districtengineers to exercise discretionaryauthority, ensure compliance with thisrequirement. A decision document will be prepared for each NWP to addressthe requirements of the NationalEnvironmental Policy Act and generallydiscuss the anticipated impacts theNWP will have on the Corps publicinterest review factors. For those NWPsthat may authorize discharges of dredged or fill material into waters of the United States, a 404(b)(1) Guidelinesanalysis will be provided in thedecision document. The 404(b)(1)Guidelines analysis will be conductedin accordance with 40 CFR 230.7. Thedraft decision documents for the
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proposed NWPs are available on theinternet at:
(docket ID number COE–2010–0035).We are soliciting comments on thesedraft decision documents, and anycomments received will be consideredwhen preparing the final decisiondocuments for the NWPs.
National Environmental Policy ActCompliance
We have prepared a draft decisiondocument for each proposed NWP. Eachdecision document contains anenvironmental assessment (EA). If theproposed NWP authorizes discharges of dredged or fill material into waters of the United States, the decisiondocument will also include a 404(b)(1)Guidelines analysis conducted inaccordance with 40 CFR 230.7. Thesedecision documents will consider theenvironmental effects of each NWP froma national perspective. Divisionengineers will issue supplementaldecision documents to evaluate regionaleffects on the aquatic environment andother public interest review factors.Those supplemental decisiondocuments will discuss regionalconditions imposed by divisionengineers to protect the aquaticenvironment and ensure that anyadverse effects resulting from NWPactivities will be no more than minimal.The assessment of cumulative effectsoccurs at two levels: national andregional (district). However,modifications at the district level aremade by the appropriate divisionengineer. There are eight Corps divisionoffices in the United States, with 38district offices. A division office mayoversee as many as seven districts(Lakes and Rivers Division) or as few astwo district offices (Pacific OceanDivision).At the national level, the decisiondocuments issued by CorpsHeadquarters include cumulative effectsassessments required by NEPA and, if the NWP authorizes discharges of dredged or fill material into waters of the United States, the 404(b)(1)Guidelines. The 404(b)(1) Guidelines at40 CFR 230.7(b) require an evaluation of the potential individual and cumulativeimpacts of the category of activitiesauthorized under the NWP.The supplemental decisiondocuments issued by division engineersinclude cumulative effects assessmentsat the regional (district) level, for eachdistrict within the division. For thoseNWPs that authorize section 404activities, the supplemental decisiondocuments will also discuss localconcerns relating to the Section404(b)(1) Guidelines, if the nationaldecision documents do not adequatelyaddress those issues. If the NWP is notsuspended or revoked in a district, thesupplemental decision documentincludes a certification that the use of the NWP in that district, with anyapplicable regional conditions (i.e.,applicable in a specific district), willresult in minimal cumulative adverseenvironmental effects. Thesupplemental decision documents areprepared by Corps districts, but must beapproved and formally issued by theappropriate division engineer, since theNWP regulations at 33 CFR 330.5(c)state that the division engineer has theauthority to modify, suspend, or revokeNWP authorizations for any specificgeographic area within his division.Regional conditions are consideredNWP modifications. Therefore, whenthe process is completed, each districtwill have approved supplementaldecision documents for each NWP, andthose supplemental decision documentswill assess cumulative effects withinthat district.District engineers may alsorecommend that the division engineerexercise discretionary authority tomodify, suspend, or revoke case-specificNWP authorizations within a district toensure that only minimal cumulativeadverse effects on the aquaticenvironment result from activitiesauthorized by that NWP. Evaluations bya district engineer may result in thedivision engineer modifying,suspending, or revoking NWPauthorizations in a particular geographicregion or watershed at a later time, if theuse of an NWP in a particular area willresult in more than minimal cumulativeor individual adverse effects on theaquatic environment. Special conditionsadded to NWP authorizations on a case- by-case basis by district engineers, suchas compensatory mitigationrequirements, help ensure that theNWPs authorize only activities thatresult in minimal individual andcumulative adverse effects on theaquatic environment.
Acreage Limits and Pre-ConstructionNotification Thresholds
We are proposing to retain most of thecurrent acreage limits for the NWPs andpropose to modify some of the NWPsacreage limits. We are also proposing tomodify the language concerning the useof waivers in NWPs 13, 29, 36, 39, 40,42, and 43 by clarifying that a waivermay be granted only after the districtengineer makes a written determinationconcluding that the discharge will resultin minimal adverse effects. Themodified waiver language will also beapplied to NWPs 21, 44, and 50, as wellas proposed new NWPs A and B. We areproposing to replace the 25 cubic yardlimit for temporary pads in NWP 6 witha
1
⁄
10
-acre limit for temporary pads. ForNWP 50 we are proposing a
1
⁄
2
-acrelimit on non-tidal waters of the UnitedStates including the loss of no morethan 300 linear feet of stream bed,unless for intermittent and ephemeralstream beds the district engineer waivesthe 300 linear foot limit by making awritten determination concluding thatthe discharge will result in minimaladverse effects. In NWPs 40 and 44 weare proposing to increase protection of streams by adding a 300 linear foot limitfor losses of stream bed, which can bewaived for intermittent and ephemeralstream beds if the district engineermakes a written determinationconcluding that the discharge will resultin minimal adverse effects.Proposed NWP A, Land-BasedRenewable Energy Generation Facilities,and proposed NWP B, Water-BasedRenewable Energy Generation PilotProjects, have a
1
⁄
2
-acre limit for lossesof non-tidal waters of the United States,including the loss of no more than 300linear feet of stream bed, unless forintermittent and ephemeral stream bedsthe district engineer waives the 300linear foot limit by making a writtendetermination concluding that thedischarge will result in minimal adverseeffects. Both of these proposed NWPsrequire PCNs.In NWP 48, we are proposing to addanother PCN threshold for proposedexpansions of the project area for theproduction of shellfish.
Compliance With the EndangeredSpecies Act
In its April 6, 2005, decision in
National Wildlife Federation et al.
v.
LesBrownlee
(No. 03–1392), the U.S.District Court for the District of Columbia determined that the Corps isobligated to consult with the U.S. Fishand Wildlife Service (FWS) on theeffects of the NWPs. In response to thatdecision, on March 13, 2007, the Corpsinitiated Endangered Species ActSection 7(a)(2) programmaticconsultation with FWS and the NationalMarine Fisheries Service (NMFS) for thecurrent NWPs. NMFS provided a draft biological opinion and the Corpsprovided comments on that draft biological opinion, as well as additionalinformation regarding the NWPs toNMFS as well as FWS. The Corps alsogranted an extension of time to theNMFS to provide the next draft of the biological opinion, and to the FWS toprovide its draft biological opinion.Since the 2007 programmaticconsultation was not completed, the
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Army Corps/ Proposal To Reissue and Modify Nationwide Permits AGENCY:
SUMMARY: The U.S. Army Corps of
Engineers (Corps) is soliciting
comments for the reissuance of the
existing nationwide permits (NWPs),
general conditions, and definitions,
with some modifications.
Engineers (Corps) is soliciting
comments for the reissuance of the
existing nationwide permits (NWPs),
general conditions, and definitions,
with some modifications.
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