Reissuance of Nationwide Permits, 11092-11198 [E7-3960]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army, Corps of Engineers
• Engineers Corps

[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Notices]
[Pages 11092-11198]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3960]



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Part II





Department of Defense





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Department of the Army, Corps of Engineers



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Reissuance of Nationwide Permits; Notice

Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / 
Notices

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

[ZRIN 0710-ZA02]


Reissuance of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing all 
existing nationwide permits (NWPs), general conditions, and 
definitions, with some modifications. The Corps is also issuing six new 
NWPs, two new general conditions, and 13 new definitions. The effective 
date for the new and reissued NWPs will be March 19, 2007. These NWPs 
will expire on March 18, 2012. The NWPs will protect the aquatic 
environment and the public interest while effectively authorizing 
activities that have minimal individual and cumulative adverse effects 
on the aquatic environment.

DATES: The NWPs and general conditions will become effective on March 
19, 2007.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO, 441 G Street 
NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by 
e-mail at david.b.olson@usace.army.mil or access the U.S. Army Corps of 
Engineers Regulatory Home Page at https://www.usace.army.mil/inet/
functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    In the September 26, 2006, issue of the Federal Register (71 FR 
56258), the U.S. Army Corps of Engineers (Corps) published its proposal 
to reissue 43 existing nationwide permits (NWPs) and issue six new 
NWPs. The Corps also proposed to reissue its general conditions and add 
one new general condition.
    The Corps proposal is intended to simplify the NWP program while 
continuing to provide environmental protection, by ensuring that the 
NWPs authorize only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and satisfy other 
public interest factors.
    As a result of the comments received in response to the September 
26, 2006, proposal, we have made a number of changes to the NWPs, 
general conditions, and definitions to further clarify the permits, 
facilitate their administration, and strengthen environmental 
protection. These changes are discussed in the preamble.
    The Corps is reissuing the 43 existing NWPs, issuing six new NWPs, 
reissuing 26 existing general conditions, and issuing one new general 
condition. The Corps is also reissuing many of the NWP definitions, and 
providing 13 new definitions. The effective date for these NWPs, 
general conditions, and definitions is March 19, 2007. These NWPs, 
general conditions, and definitions expire on March 18, 2012.
    While the Administrative Procedure Act requires a substantive rule 
to be published in the Federal Register at least 30 days before its 
effective date, exceptions to this requirement can be made for good 
cause (5 U.S.C. 553(d)(3)). We are utilizing this good cause exception 
to reduce hardships on the regulated public.

Grandfather Provision for Expiring NWPs

    In accordance with 33 CFR 330.6(b), activities authorized by the 
current NWPs issued on January 15, 2002, that have commenced or are 
under contract to commence by March 18, 2007, will have until March 18, 
2008, to complete the activity under the terms and conditions of the 
current NWPs.

Clean Water Act Section 401 Water Quality Certifications (WQC) and 
Coastal Zone Management Act (CZMA) Consistency Determinations

    In the September 26, 2006, Federal Register notice and concurrent 
with letters from Corps Districts to the appropriate state agencies, 
the Corps requested initial 401 certifications and CZM consistency 
determinations. This began the Clean Water Act section 401 water 
quality certification (WQC) and Coastal Zone Management Act (CZMA) 
consistency determination processes.
    Today's Federal Register notice begins the 60-day period for 
states, Indian Tribes, and EPA to complete their WQC process for the 
NWPs. This Federal Register notice also provides a 60-day period for 
coastal states to complete their CZMA consistency determination 
processes. This 60-day period will end on May 11, 2007.
    While the states, Indian Tribes, and EPA complete their WQC 
processes and the states complete their CZMA consistency determination 
processes, the use of an NWP to authorize a discharge into waters of 
the United States is contingent upon obtaining individual water quality 
certification or a case-specific WQC waiver. Likewise, the use of an 
NWP to authorize an activity within, or outside, a state's coastal zone 
that will affect land or water uses or natural resources of that 
state's coastal zone, is contingent upon obtaining an individual CZMA 
consistency determination, or a case-specific presumption of CZMA 
concurrence. We are taking this approach to reduce the hardships on the 
regulated public that would be caused by a substantial gap in NWP 
coverage if we were to wait 60 days before these NWPs would become 
effective.
    After the 60-day period, the latest version of any written position 
take by a state, Indian tribe, or EPA on its WQC for any of the NWPs 
will be accepted as the state's final position on those NWPs. If the 
state, Indian tribe, or EPA takes no action by May 11, 2007, WQC will 
be considered waived for those NWPs.
    After the 60-day period, the latest version of any written position 
take by a state on its CZMA consistency determination for any of the 
NWPs will be accepted as the state's final position on those NWPs. If 
the state takes no action by May 11, 2007, CZMA concurrence will be 
presumed for those NWPs.

Discussion of Public Comments

I. Overview

    In response to the September 26, 2006, Federal Register notice, we 
received more than 22,500 comments. We reviewed and fully considered 
all comments received in response to that notice.

General Comments

    Many commenters provided general support for the proposal, and some 
of them stated that the changes are a step forward in improving 
consistency in the NWP program. Some commenters said that the proposed 
NWPs provide a balance between environmental protection and allowing 
development to occur. One commenter said that the NWP program provides 
sufficient environmental protection, through its general conditions and 
the ability for the district engineer to exercise discretionary 
authority to require individual permits. Several commenters stated that 
the proposed NWPs are simpler, clearer, and easier to understand. Three 
commenters said that further streamlining is necessary. One commenter 
recommended adopting a standard numbering system for paragraphs and 
subparagraphs within the NWP text. Three commenters said that the Corps 
should retain appropriate references to general conditions in the text 
of NWPs, for purpose of clarification.
    To the extent that it is feasible, we have adopted a standard 
format for the

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NWPs. Some NWPs require different formats, to make them easier to read 
and provide further clarification. For the most part, it is not 
necessary to retain references to general conditions in the text of the 
NWPs, except for general condition 27, Pre-Construction Notification, 
because most general conditions apply to all NWPs.
    In contrast, a few commenters said that the proposed NWPs are not 
simpler and clearer. Three commenters declared that the proposed NWPs 
are more like individual permits than general permits. A number of 
commenters asserted that the proposed NWPs will significantly increase 
costs and delays for permit applicants. Four commenters said that the 
attempt at clarification and simplicity will reduce the flexibility of 
the NWP program.
    The NWPs issued today are not similar to individual permits. The 
NWPs provide a streamlined form of Department of the Army authorization 
for those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment and satisfy other public 
interest review factors. In 2003, the average processing time for NWPs 
was 27 days and for individual permits it was 144 days. In response to 
comments received as a result of the September 26, 2006, Federal 
Register notice, we have modified some of the proposed NWPs to address 
provisions that could have unnecessary negative effects on regulatory 
efficiency and environmental protection.
    Other commenters expressed general opposition to the proposal, and 
said that the proposal weakens protection for waters and should be 
withdrawn. Many of these commenters objected to the goals of 
``streamlining'' or ``improving regulatory efficiency,'' stating that 
the focus of the NWPs should be on compliance with the Clean Water Act. 
Some commenters expressed opposition to the issuance of the NWPs, and 
said that activities proposed for NWP authorization should be 
individually subjected to a public notice and comment process. One 
commenter suggested that pre-construction notifications should be 
posted on district web sites for at least 30 days before an NWP 
verification is issued, to allow for public comment on those proposed 
activities.
    The NWPs issued today comply with the requirements of the Clean 
Water Act. When the Clean Water Act was amended in 1977, Congress 
recognized the importance of general permits for the effective and 
efficient implementation of section 404. We do not agree that pre-
construction notifications should be posted on the Internet for a 
public comment period. The review of pre-construction notifications by 
district engineers is sufficient for effective environmental 
protection. Some NWP activities require coordination with other Federal 
and/or State agencies, which provides a supplemental level of 
environmental protection. The activities authorized by NWPs have 
minimal adverse effects and are limited, within each permit, to 
narrowly defined categories of similar activities. Notice and 
opportunity for public comment on the authorization of these activities 
through NWPs is provided as part of the NWP promulgation process. The 
Corps believes this is the appropriate level of public notice and 
comment for these types of activities. Further, when reviewing pre-
construction notifications, district engineers will exercise 
discretionary authority to require individual permits for those 
activities that they determine may result in more than minimal adverse 
effects on the aquatic environment or do not satisfy other public 
interest review factors, and thus warrant a more thorough individual 
review through a public notice and comment process.
    Some commenters stated that the NWPs should require consideration 
of less damaging alternatives, and others said that the Corps did not 
provide sufficient scientific justification for proposed changes to the 
NWPs, or demonstrate that NWP activities result in minimal adverse 
environmental effects. One commenter said that there is not sufficient 
emphasis on avoidance of impacts to waters of the United States. 
Another commenter objected to using NWPs to expand existing projects, 
stating that it discourages avoidance and minimization.
    The NWPs authorize only those activities that result in minimal 
individual and cumulative adverse effects on the aquatic environment, 
and thus do not include a formal process for consideration of less 
damaging alternatives. General condition 20, Mitigation, requires 
permittees to avoid and minimize adverse effects to the maximum extent 
practicable on the project site. The Corps believes this ensures 
sufficient consideration of alternatives for the types of low-impact 
projects that are eligible for authorization through NWPs. The Corps 
notes that expansion of existing projects may support the goals of 
avoidance and minimization, in contrast to the alternative of 
developing new sites, which may involve more substantial adverse 
impacts. The 404(b)(1) Guidelines contain flexibility for those 
activities that result in minimal adverse effects on the aquatic 
environment. Compliance with the National Environmental Policy Act and 
the Section 404(b)(1) Guidelines is accomplished through decision 
documents prepared by the Corps. These decision documents contain 
findings that the NWPs result in minimal adverse effects, and are based 
on available data at the national scale. Division engineers issue 
supplemental decision documents for use of NWPs within Corps district 
boundaries.
    Several commenters said that the NWPs do not protect small wetlands 
and waterbodies enough, and one commenter said that the proposed 
permits do not support the ``no overall net loss'' goal for wetlands. 
In contrast, one commenter stated that the proposal provides adequate 
protection to the environment and supports the ``no overall net loss'' 
of wetlands goal.
    The NWPs protect all jurisdictional waters, including small 
wetlands and other waterbodies, through their terms and conditions, 
such as acreage limits and linear foot limits. The NWPs also support 
the ``no overall net loss goal'' through mitigation requirements, 
including aquatic resource restoration, establishment, enhancement, and 
preservation activities that may be required as compensatory 
mitigation. As noted above, general condition 20, Mitigation, also 
includes requirements for on-site avoidance and minimization.
    Two commenters objected to allowing district engineers to issue 
waivers that allow permittees to exceed the limits of NWPs, stating 
that such waivers do not support the minimal adverse effects 
requirement. Two commenters said that the NWPs authorize unlimited 
impacts to waters of the United States. One commenter remarked that 
acreage limits should be consistent for all NWPs. One commenter stated 
that the acreage limits in the proposed NWPs are sufficient to ensure 
minimal adverse effects. Three commenters asserted that the acreage 
limits of the proposed NWPs are too low, and they reduce the 
effectiveness of the NWP program. One commenter said that the low 
acreage limits for the NWPs lessen incentives to reduce impacts to 
waters, since many projects that previously qualified for NWP 
authorization now require individual permits. Another commenter stated 
that the acreage limits for all NWPs should be based on appropriate 
scientific and environmental criteria.
    Many of the NWPs have acreage limits, and most of those that do not 
are self-limiting due to the nature of the authorized activity (e.g., 
NWP 1 for aids to navigation or NWP 10 for mooring

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buoys). Acreage limits in NWPs cannot be waived by the district 
engineer. Linear foot limits in some permits can be waived, but only 
for intermittent and ephemeral (not perennial) streams. Two NWPs (i.e., 
NWPs 13 and 36) have cubic yard limits that may be waived. Those NWPs 
that contain provisions allowing district engineers to waive linear 
foot or cubic yard limits require the district engineer to make a 
written determination of minimal adverse effects. In such cases, the 
permittee cannot assume that a waiver was granted if the district 
engineer does not affirm that waiver in writing (see general condition 
27). The Corps believes these limited waiver provisions are appropriate 
because activities that exceed the limits may still have minimal 
adverse impacts and it may require a site-specific evaluation by the 
district engineer to decide if they do. Other NWPs that do not have 
limits typically provide environmental benefits, such as aquatic 
resource restoration activities authorized by NWP 27 or hazardous and 
toxic waste cleanup activities authorized by NWP 38.
    NWPs 21, 49, and 50 are a special case, in that they authorize 
activities for which review of environmental impacts, including impacts 
to aquatic resources, is separately required under other Federal 
authorities (e.g., Surface Mining Control and Reclamation Act (SMCRA) 
permits for coal mining activities). The Corps believes it would be 
unnecessarily duplicative to separately require the same substantive 
analyses through an individual permit application as are already 
required under SMCRA. However, through the pre-construction 
notification review process, the district engineer will consider the 
analyses prepared for the SMCRA permit and exercise discretionary 
authority to require an individual permit in cases where the district 
engineer determines, after considering avoidance and reclamation 
activities undertaken pursuant to SMCRA, that the residual adverse 
effects are not minimal. The project sponsor is required to obtain 
written verification prior to commencing work.
    The acreage limits for the NWPs are established so that they 
authorize most activities that result in minimal adverse effects on the 
aquatic environment. We acknowledge that there may be some activities 
that exceed the acreage limits and still have minimal impacts but the 
Clean Water Act requires us to ensure that all projects authorized by 
NWPs have minimal impacts, not that all minimal-impact projects can be 
authorized by NWPs. Activities that are not authorized through NWPs may 
be authorized through regional general permits or individual permits.
    One commenter stressed that the NWPs must be reissued in time, so 
that there is no gap between the expiration date of the current NWPs 
and the effective date of the new NWPs. Two commenters recommended 
administratively extending the current NWPs until the effective date of 
the new NWPs, through 5 U.S.C. 558(c), which is used to 
administratively extend National Pollutant Discharge Elimination System 
(NDPES) permits issued under Section 402 of the Clean Water Act.
    We cannot use 5 U.S.C. 558(c) to administratively extend the NWPs, 
since that provision of the Administrative Procedures Act applies only 
to activities of ``a continuing nature'' such as discharges of 
effluents authorized by National Pollutant Discharge Elimination System 
permits issued under Section 402 of the Clean Water Act. The vast 
majority of activities authorized by NWPs are construction activities, 
with specific start and end dates, either for the discharge of dredged 
or fill material into waters of the United States, or structures or 
work in navigable waters of the United States. In general, these NWP 
activities are not of a continuing nature, and do not meet the 
requirements of 5 U.S.C. 558(c). The grandfather provision at 33 CFR 
330.6(b) can be used to continue the authorization for those NWP 
activities that are under construction, or under contract to begin 
construction, after the NWP expires. This provision of the NWP 
regulations allows the permittee up to one year to complete the 
authorized NWP activity. Today's reissued and new permits will become 
effective on March 19, 2007, the day after the existing permits expire. 
Thus there will be no gap in coverage. The Corps expects that some 
States may be able to make their final Section 401 water quality 
certifications for all or some permits by this date. In cases where the 
State has not completed a 401 water quality certification by this time, 
the Corps will issue provisional verifications and permittees will be 
required to obtain individual State certifications prior to commencing 
discharges into waters of the United States.

Compliance With Section 404(e) of the Clean Water Act and the 404(b)(1) 
Guidelines

    Several commenters said that the proposed NWPs are contrary to the 
intent of section 404(e) to provide an expedited, streamlined permit 
program for activities that have minimal environmental impacts.
    The NWPs continue to provide a streamlined authorization process 
for those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment. Those activities that do 
not qualify for NWP authorization may be authorized by regional general 
permits or individual permits.
    Many commenters asserted that the NWPs result in more than minimal 
adverse effects on the aquatic environment, individually and 
cumulatively. Several commenters said that the NWPs do not comply with 
the 404(b)(1) Guidelines. One commenter said that the Corps should 
provide quantitative statistics on actual impacts, to predict 
cumulative impacts resulting from the NWPs. Two commenters believe that 
the draft decision documents do not adequately demonstrate that NWPs 
will result in minimal individual and cumulative impacts to waters of 
the United States. They said that there is not sufficient documentation 
to support estimates of the number of times an NWP will be used, the 
acres impacted, and the acres mitigated. They also stated that there 
should be more specific evaluations of particular types of waters, as 
well as landscape considerations. Four commenters said that the Corps 
cannot rely on mitigation to ensure minimal adverse effects, stating 
that the evaluation of minimal adverse effects must be completed prior 
to issuing a general permit. Therefore, the Corps cannot rely on 
mitigation that will be offered by permittees when making its finding 
under the 404(b)(1) Guidelines.
    When we issue the NWPs, we fully comply with the requirements of 
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of 
general permits under section 404. For the section 404 NWPs, each 
decision document contains a 404(b)(1) Guidelines analysis. Section 
230.7(b) of the 404(b)(1) Guidelines requires only a ``written 
evaluation of the potential individual and cumulative impacts of the 
categories of activities to be regulated under the general permit.'' 
Since the required evaluation must be completed before the NWP is 
issued, the analysis is predictive in nature. The estimates of 
potential individual and cumulative impacts, as well as the projected 
compensatory mitigation that will be required, are based on the best 
available data from the Corps district offices, based on past use of 
NWPs. In our decision documents, we also used readily available 
national data on the status of wetlands and other aquatic

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habitats in the United States, and the potential impacts of the NWPs on 
those waters.
    The 404(b)(1) Guidelines at 40 CFR 230.7 do not prohibit the 
consideration of mitigation when making the predictive evaluation of 
potential individual and cumulative impacts that may be authorized by 
an NWP. The practice of using compensatory mitigation to ensure minimal 
adverse individual and cumulative adverse effects is an important 
component of the NWP program (see 33 CFR 330.1(e)(3)).
    Two commenters said that the Corps cannot rely on regional 
conditioning and discretionary authority to ensure minimal adverse 
effects. One commenter objected to the ability of the district engineer 
to exercise discretionary authority to impose conditions on NWP 
activities. Another commenter stated that in order to ensure minimal 
adverse effects, pre-construction notification should be required for 
all NWPs. A number of commenters said that many of the NWPs do not 
authorize activities that are similar in nature. They said that the 
Corps is required to explain why activities authorized by an NWP are 
similar in nature to warrant authorization under a single NWP.
    The pre-construction notification review process and discretionary 
authority are important tools to help ensure that the NWPs authorize 
only those activities with minimal individual and cumulative adverse 
effects. If the district engineer reviews a pre-construction 
notification and determines that the impacts are more than minimal, 
discretionary authority will be exercised and either the NWP will be 
conditioned to require mitigation or other actions to ensure minimal 
adverse effects or an individual permit will be required. The Corps 
disagrees that pre-construction notification is necessary for all NWP 
activities. However, the Corps has expanded the scope of activities 
requiring pre-construction notification. Specifically, all activities 
conducted under NWPs 7, 8, 17, 21, 29, 31, 33, 34, 37, 38, 39, 40, 42, 
44, 45, 46, 49, and 50 now require pre-construction notification, 
regardless of acreage impacted. This will enable district engineers to 
better ensure that these permits authorize only activities with minimal 
impacts.
    These NWPs satisfy the requirement under Section 404(e) of the 
Clean Water Act that the categories of authorized activities be similar 
in nature. The ``similar in nature'' provision does not require NWP 
activities to be identical to each other. We believe that the 
``categories of activities that are similar in nature'' requirement of 
section 404(e) is to be interpreted broadly, for practical 
implementation of this general permit program. Nationwide permits, as 
well as other general permits, are intended to reduce administrative 
burdens on the Corps and the regulated public, by efficiently 
authorizing activities that have minimal adverse environmental effects. 
For each NWP that authorizes activities under Section 404 of the Clean 
Water Act, the 404(b)(1) Guidelines analysis provides a brief 
explanation as to why the activities authorized by that NWP are similar 
in nature.
    One commenter said that consideration of impacts resulting from 
general permits should not be limited to the aquatic environment. This 
commenter said that Section 404(e) of the Clean Water Act requires 
permitted activities to have minimal impacts on the environment as a 
whole.
    In addition to the requirement that there be no more than minimal 
adverse effects on the aquatic environment, activities authorized by 
NWPs must also result in minimal adverse effects with regards to the 
Corps public interest factors (see 33 CFR 330.1(d)), which include 
other components of the environment.

Compliance With the National Environmental Policy Act

    Many commenters said that the Corps must complete an Environmental 
Impact Statement for the proposed NWPs. One commenter remarked that the 
EIS must consider the individual impacts of the NWPs, as well as their 
cumulative impacts. One comment asserted that mitigation cannot be used 
to justify using an environmental assessment for NEPA compliance, 
instead of an Environmental Impact Statement.
    The NWPs authorize activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and satisfy other 
public interest review factors. The NWPs do not reach the level of 
significance required for an EIS. The Corps complies with the 
requirements of the NEPA by preparing an environmental assessment for 
each NWP. When an NWP is issued, a Finding of No Significant Impact is 
also issued.
    The use of mitigation to make a Finding of No Significant Impact is 
a standard practice for NEPA compliance. For the purposes of NEPA, 
mitigation includes avoiding impacts, minimizing impacts, rectifying 
impacts through repairing or restoring the affected environment, 
reducing or eliminating impacts over time through preservation and 
maintenance activities, and compensating for impacts by replacing or 
providing resources or environments (see 40 CFR 1508.20). Through the 
requirements of general condition 20, Mitigation, the review of pre-
construction notifications by district engineers, and regional and 
special conditions imposed on the NWPs by division and district 
engineers, NWP activities use all these forms of mitigation so that the 
adverse effects of the NWPs do not reach the level of significance that 
requires an Environmental Impact Statement.
    Several commenters stated that the draft decision documents do not 
satisfy the requirements of the National Environmental Policy Act 
(NEPA). Some commenters said that the analyses in the decision 
documents are not based on realistic data. One commenter noted that the 
average impact is often much less than the acreage limit for the NWP, 
and said that the mitigation ratios seem too high. One commenter said 
that the environmental assessments in draft decision documents must 
contain site-specific analyses. Two commenters asserted that the 
cumulative effects analyses in the decision documents are inadequate. 
One commenter said that the cumulative effects analysis should include 
information on the past use of NWPs, as well as information on other 
development activities expected to have impacts on protected resources.
    We believe the data in the draft decision documents comply with the 
requirements of NEPA. The estimates of the projected use of the NWPs, 
the acres impacted, and the amount of compensatory mitigation are based 
on available data from Corps district offices, and other sources of 
data, such as surveys. Those data are based on pre-construction 
notifications and other requests for NWP verifications for activities 
that do not require pre-construction notification. For those NWP 
activities that do not require notification, it is necessary to derive 
estimates. For the decision documents, we must use predictive data, 
since the future use of an NWP is speculative. Likewise, we cannot 
provide site-specific information for these environmental assessments, 
because there are no specific sites or projects associated with the 
proposed issuance of an NWP. Authorized impacts are usually much less 
than the acreage limit for an NWP because of the avoidance and 
minimization required by the terms and conditions of the NWPs. The 
compensatory mitigation data provided in the decision documents include 
preservation.

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    On June 24, 2005, the Council on Environmental Quality issued 
guidance on the consideration of past actions for cumulative effects 
analyses. According to this guidance, the cumulative effects analysis 
needs to consider relevant past actions that can be used to analyze 
reasonably foreseeable effects that have ``a continuing, additive, and 
significant relationship to those effects.'' The guidance also 
recommends that agencies look at the present effects of past actions 
that are relevant because of significant cause-and-effect relationships 
with the effects for the proposed action and its alternatives. Except 
for a few activities, the NWPs do not authorize activities of a 
continuing nature. In general, they authorize construction activities 
with specific start and end dates. The NWPs can be issued for only a 
period of five years or less, and once an NWP expires, it cannot be 
used to authorize activities in waters of the United States. An 
activity must then be authorized by the reissued NWP, another NWP, a 
regional general permit, or an individual permit. The cumulative 
effects analysis is more properly focused on the permits that can be 
used to authorize regulated activities, not past permits that have 
expired. Therefore, the cumulative effects analysis for the NWP 
issuance needs to focus on the reasonably foreseeable cumulative 
effects that are expected to occur during the five year period the NWPs 
are valid. We use information on past use of the NWPs to estimate how 
often an NWP will be used during the period it will be valid, and to 
estimate the impacts and compensatory mitigation resulting from the use 
of that NWP.
    One commenter requested clarification as to whether the draft 
decision documents included an environmental assessment, an EIS, or 
another type of NEPA document. Two commenters remarked that the Corps 
failed to solicit public comment on the environmental assessments for 
the proposed NWPs. Two commenters objected to the Finding of No 
Significant Impact (FONSI) in each draft decision document, stating 
that it is inappropriate to do a FONSI for a proposed action. Another 
commenter concurred with the FONSI found in each NWP decision document. 
One commenter said that the draft decision documents accurately 
analyzed anticipated environmental effects of the proposed NWPs.
    A draft environmental assessment was prepared for each of the 
proposed NWPs. The draft environmental assessment was in the draft 
decision document, along with the draft statement of findings and, if 
the NWP authorized activities under Section 404 of the Clean Water Act, 
a draft Section 404(b)(1) Guidelines analysis. Those draft decision 
documents were available for public review and comment at the same time 
as the proposed NWPs, general conditions, and definitions. A number of 
commenters who commented on the proposed NWPs also commented on the 
draft decision documents. Commenters could also provide input on the 
draft FONSI in each decision document.

Compliance With the Endangered Species Act

    In the September 26, 2006, Federal Register notice, we stated that 
we will conduct Endangered Species Act Section 7(a)(2) consultation for 
the NWPs. Since the issuance of the September 26, 2006, proposal, the 
Corps has been working with the National Marine Fisheries Service 
(NMFS) and the U.S. Fish and Wildlife Service (USFWS) to develop an 
analysis plan to guide the formal programmatic Section 7 consultation 
for the NWPs. As soon as the analysis plan is completed, the Corps will 
request programmatic Endangered Species Act Section 7(a)(2) 
consultation with the USFWS and NMFS. Prior to the effective date of 
these NWPs, the Corps will issue a section 7(d) determination for the 
NWP Program.
    Two commenters said the Corps must conduct Endangered Species Act 
consultation before the NWPs are issued. One of these commenters said 
that the Corps must conduct programmatic section 7 consultation for the 
NWP program, with mandatory district-by-district formal consultations. 
One commenter requested a timeline for the programmatic Section 7 
consultation with the USFWS and NMFS. Another commenter asked for 
clarification whether Section 7 ESA consultation will be conducted for 
each NWP authorization or the NWP program as a whole. One commenter 
objected to the Corps conducting section 7 consultation for coal mining 
activities authorized by the Surface Mining Control and Reclamation 
Act.
    The programmatic ESA consultation will be conducted for the NWP 
program as a whole, and will be concluded as expeditiously as possible. 
To address ESA compliance while programmatic consultation is being 
conducted, a revised Section 7(d) determination will be issued for the 
NWP program before the effective date of these NWPs. The Section 7(d) 
determination discusses how the issuance of these NWPs will not 
foreclose any options. The requirements of general condition 17 and 33 
CFR 330.4(f) will ensure compliance with the ESA. We anticipate that 
the programmatic consultation will result in a biological opinion that 
provides tools that districts can use to better address potential 
impacts to the endangered and threatened species that occur in their 
areas of regulatory jurisdiction. Corps districts will conduct their 
own formal Section 7 consultations as necessary. The programmatic 
consultation will be conducted for the NWP program; its applicability 
to NWP 21 and other NWPs will be addressed as part of the programmatic 
consultation itself.
    One commenter said that the Corps cannot rely on permit applicants 
to notify them in cases where ESA consultation is necessary. Two 
commenters said that the proposed changes to general condition 17, 
which requires district engineers to notify prospective permittees of 
their ``no effect'' or ``may affect'' determinations within 45 days of 
receipt of a complete pre-construction notification, violates the ESA 
since the Corps will be unable to make its decision based on the best 
available science. Two commenters said that the Corps must require pre-
construction notifications for all NWP activities to help ensure 
compliance with the requirements of the ESA. Two other commenters 
stated that species-specific regional conditions must be imposed on the 
NWPs to protect endangered and threatened species.
    Non-federal permittees shall notify the district engineer if any 
listed species or designated critical habitat might be affected or is 
in the vicinity of the project, or if the project is located in 
designated critical habitat, and in such cases shall not begin work on 
the activity until notified by the district engineer that the 
requirements of the ESA have been satisfied and that the activity is 
authorized. This requirement applies even when a pre-construction 
notification would not otherwise be required. In such cases, this 
condition also prohibits the prospective permittee from conducting the 
NWP activity until the district engineer notifies him or her that the 
requirements of the ESA have been fulfilled and the activity is 
authorized by NWP. The ESA regulations at 50 CFR part 402 do not 
require ESA consultation for those activities that will not affect 
endangered or threatened species or destroy or modify designated 
critical habitat. In some districts, regional conditions will be 
imposed on the NWPs to protect listed species and critical habitat.
    The notification requirement in general condition 17 does not 
violate the ESA. Forty-five days is generally

[[Page 11097]]

sufficient to screen proposed activities for potential effects to 
endangered and threatened species or designated critical habitat, and 
determine if section 7 consultation is necessary. The notification 
requirement will help improve ESA compliance by keeping the prospective 
permittee aware of the status of his or her pre-construction 
notification and preclude applicants from assuming that they can 
proceed after the 45 day pre-construction notification period has 
ended, if they have not heard back from the Corps that ESA requirements 
have been fulfilled and the activity is authorized. Districts will 
continue to develop regional conditions to further protect endangered 
and threatened species, as well as critical habitat.

Linear Foot Limits for Stream Bed Impacts

    In the September 26, 2006, Federal Register notice, we proposed to 
modify several NWPs to include ephemeral streams in the 300 linear foot 
limits for losses of stream beds. We also proposed to allow district 
engineers to issue written waivers to the 300 linear foot limit for 
intermittent and ephemeral streams, upon making a determination that 
the adverse effects on the aquatic environment will be minimal. Many 
commenters objected to including ephemeral streams in the 300 linear 
foot limit for stream beds for NWPs 29, 39, 40, 42, and 43. Many other 
commenters supported the proposed change. A large number of commenters 
objected to allowing district engineers to waive the 300 linear foot 
limit, stating that miles of stream bed could be lost, resulting in 
more than minimal adverse environmental effects. A few commenters 
supported the proposed waiver. One commenter said that limits to 
filling or excavating ephemeral streams should be addressed through the 
regional conditioning process, instead of the national terms and 
conditions of the NWPs. Another commenter recommended imposing a higher 
linear foot limit for losses of ephemeral streams.
    Ephemeral streams are important components of the stream network. 
Applying the 300 linear foot limit to ephemeral stream beds will help 
ensure that the applicable NWPs will authorize activities with minimal 
individual and cumulative adverse effects on the aquatic environment. 
The ability of district engineers to issue written waivers of the 300 
linear foot limit for intermittent and ephemeral stream beds provides 
flexibility in the administration of the NWP program. In cases where 
the 300 linear foot limit is waived, the acreage limit of the NWP still 
applies. We believe it is more appropriate to limit losses of ephemeral 
stream beds through the national NWP terms and conditions, to provide 
consistent protection for those waters across the country. Regional 
differences in the values applied to ephemeral stream functions and 
services can be addressed through the waiver process. We believe the 
300 linear foot limit, in conjunction with the waiver process, provides 
sufficient flexibility for the NWP program while ensuring minimal 
adverse effects.
    Three commenters recommended that the Corps modify its definition 
of ``ephemeral stream'' to simplify the process of distinguishing 
between ephemeral and intermittent streams instead of applying the 300 
linear foot limit to ephemeral streams. Another commenter indicated 
that the difficulty of distinguishing between ephemeral and 
intermittent streams is sufficient justification for including 
ephemeral streams in the 300 linear foot limit. In contrast, several 
commenters stated that including ephemeral streams in the 300 linear 
foot limit would not simplify the administration of the NWP program, 
because it would result in a large number of individual permits, as 
well as substantial increases in the Corps workload. Two commenters 
asked the Corps to establish criteria for determining when a waiver of 
the 300 linear foot limit can be issued. One commenter stated that the 
300 linear foot limit should not apply to filling or excavating 
drainage ditches. One of these commenters said that an acreage limit 
should be applied to streams, instead of a linear foot limit.
    Modifying the definition of ``ephemeral stream'' is not an 
appropriate alternative to modifying the 300 linear foot limit. The 
definitions of ``ephemeral stream'' and ``intermittent stream'' that 
were first promulgated for the NWPs in 2000 are based on the hydrologic 
differences between those stream types, especially the differences in 
how the stream bed interacts with the water table. We do not agree that 
the changes to the 300 linear foot limit will result in a large 
increase in the number of individual permits processed per year. Under 
the current NWPs, district engineers could exercise discretionary 
authority and require individual permits if proposed impacts to 
ephemeral streams would be more than minimal. We do not believe it 
would be appropriate to establish national criteria for determining 
when a waiver of the 300 linear foot limit would be applied. These 
determinations should be made on a case-by-case basis by district 
engineers, depending upon assessments of site-specific conditions. Even 
though the acreage limits of NWPs 29, 39, 40, 42, and 43 also apply to 
losses of stream bed, the linear foot limit is a useful tool for 
ensuring minimal adverse effects to these linear aquatic ecosystems. 
The 300 linear foot limit for filling and excavating stream beds does 
not apply to ditches constructed in wetlands, or to ditches constructed 
in uplands that are determined to be waters of the United States. 
However, the 300 linear foot limit does apply to ditches that are 
constructed by modifying streams through channelization or other 
activities.

Pre-Construction Notification

    Many commenters objected to the proposal to add or expand pre-
construction notification requirements for several NWPs, and a few of 
these commenters said that lowering the pre-construction notification 
threshold will substantially increase the Corps workload. Several 
commenters stated that increasing the number of activities that require 
pre-construction notification will result in additional delays and 
costs for permit applicants. In contrast, a number of commenters said 
that pre-construction notification should be required for all NWP 
activities, so that site-specific concerns can be more effectively 
addressed. One commenter asserted that the use of the pre-construction 
notification process and the use of discretionary authority should be 
limited, to provide more certainty to the NWP authorization process. 
Another commenter said that the decision to lower pre-construction 
notification thresholds should be left to division engineers and the 
regional conditioning process, to provide more flexibility for the NWP 
program.
    Modifying NWPs 39, 40, 42, and 43 to require pre-construction 
notification for all activities will help ensure that these NWPs 
authorize only those activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment and other public 
interest review factors, such as flood hazards and floodplain values. 
Corps districts have already been receiving large numbers of 
verification requests for NWP 39, 40, 42, and 43 activities that do not 
require pre-construction notification, so we believe that this change 
will not result in a substantial increase in our workload. In addition, 
the modified pre-construction notification threshold will facilitate 
compliance with the Endangered Species Act and Section 106 of the 
National Historic Preservation Act, by better ensuring notice of 
activities that

[[Page 11098]]

may have a higher likelihood of affecting endangered or threatened 
species, designated critical habitat, or historic properties. We do not 
agree that it is necessary to require pre-construction notifications 
for all NWP activities, because many NWP activities have negligible 
effects on the aquatic environment and the public interest review 
factors. We have focused the pre-construction notification requirements 
on those activities that have the potential for adverse effects that 
may require additional scrutiny by district engineers, including ESA 
and/or NHPA consultation.
    The pre-construction notification and discretionary authority 
processes provide flexibility to the Corps regulatory program, by 
allowing the Corps to focus its limited resources on activities that 
have the potential to have more than minimal adverse effects on the 
aquatic environment. We believe that the proposed changes to the pre-
construction notification thresholds are necessary for effective 
implementation of the NWP program, and to address issues of concern at 
the national level.
    One commenter objected to the increased use of the pre-construction 
notification process and the waivers of limits, such as the 300 linear 
foot limit for the loss of intermittent and ephemeral stream beds for 
certain NWPs, to authorize activities by NWP. Another commenter said 
that it is an administrative burden to require the use of NWP 33 with 
other NWPs when in-stream construction activities need to occur in dry 
conditions. This commenter said that NWP 33 should only be used when 
temporary work is done in waters of the United States, and no other NWP 
is needed to authorize permanent structures or fills for the activity. 
One commenter recommended requiring pre-construction notifications for 
filling waters of the United States that are five or more feet deep, 
because of the effects on the hydrologic balance of a region.
    The ability to waive limits after the review of a pre-construction 
notification and a written determination that the adverse effects of a 
particular NWP activity will be minimal provides flexibility to the NWP 
program, and allows the Corps to focus more of its resources on those 
activities that require individual permits and may have substantial 
adverse effects on the aquatic environment and the public interest. In 
the final NWPs, we have addressed the concern regarding the requirement 
to use NWP 33 for all temporary construction, access, and dewatering 
activities. Those changes are discussed in further detail for each 
applicable NWP. Many NWP activities that result in a discharge of 
dredged or fill material into waters of the United States, regardless 
of water depth, require pre-construction notification, which will allow 
district engineers to review those activities on a case-by-case basis 
and assess potential effects on the hydrologic balance of the area in 
the vicinity of the proposed work.
    One commenter said that the pre-construction notification process 
should be modified to require notification of Indian Tribes, to provide 
them with the opportunity to comment on proposed activities that may 
result in the violation of Indian rights. This commenter also said that 
if the Indian Tribe identifies a potential conflict with Federally-
protected Indian rights, the use of the NWPs should not be allowed.
    The regional conditioning process, as well as government-to-
government consultation between Tribes and the Corps districts where 
Tribal lands are located, are more appropriate mechanisms to address 
this commenter's concerns, since there are over 580 Federally-
recognized tribes, and each Tribe is likely to have different concerns 
regarding the implementation of the NWP program. General condition 16 
states that no NWP activity may impair reserved Tribal rights. 
Activities that do impair reserved Tribal rights are not authorized by 
NWPs. Regional conditions are an effective mechanism for addressing the 
concerns of a specific Indian Tribe, and can be used to facilitate 
working relationships between the Corps and the Tribe to help the Corps 
fulfill its trust responsibilities.

Clean Water Act Jurisdiction

    On June 19, 2006, the Supreme Court issued its decision in the case 
of Rapanos et ux, et al, v. United States. Many commenters cited this 
decision, as well as other court decisions, and said that the proposed 
NWPs exceed the Corps jurisdictional authority under Section 404 of the 
Clean Water Act. Several commenters said that ephemeral streams are not 
subject to Clean Water Act jurisdiction and should not be covered in 
the NWPs. Another commenter asserted that intermittent streams are not 
waters of the United States.
    The Rapanos decision, as well as other court decisions made in the 
past several years, raises questions about the jurisdiction of the 
Clean Water Act, including Section 404, over some intermittent and 
ephemeral streams and their adjacent wetlands. The Corps will assess 
jurisdiction regarding such waters on a case-by-case basis in 
accordance with evolving case law and any future guidance that may be 
issued by appropriate Executive Branch agencies (e.g., the Corps, U.S. 
Environmental Protection Agency). Under the current regulations and 
guidance, intermittent and ephemeral streams may meet the regulatory 
definition of ``waters of the United States'' and be subject to Clean 
Water Act jurisdiction. Regulatory jurisdiction over these waterbodies 
will be determined on a case-by-case basis by district engineers, in 
accordance with current and future regulations and guidance.
    One commenter said that when applying the NWP acreage limits to 
wetlands, the Corps should not include all wetlands, just those subject 
to Clean Water Act jurisdiction. One commenter stated that a clearer 
definition of ``navigable waters'' is needed. Another commenter said 
that ditches are not waters of the United States, and impacts to 
ditches should instead be addressed through state programs. A commenter 
stated that the Corps must promulgate regulations to define ``waters of 
the United States'' for the purposes of implementing the NWP program.
    The acreage limits of the NWPs apply only to losses of waters of 
the United States, including jurisdictional wetlands (see the 
definition of the term ``loss of waters of the United States'' in the 
``Definitions'' section of the NWPs). Similarly, linear foot limits 
apply only to jurisdictional streams. Ditches may also be subject to 
jurisdiction under Section 404 of the Clean Water Act and/or Section 10 
of the Rivers and Harbors Act of 1899, if they meet the regulatory 
definitions of ``waters of the United States'' and/or ``navigable 
waters of the United States.'' Waters of the United States are defined 
at 33 CFR part 328 and navigable waters of the United States are 
defined at 33 CFR part 329.

Regional Conditioning of Nationwide Permits

    One commenter stated that regional conditions are unnecessary, and 
result in too much restriction of the NWPs. A commenter remarked that 
placing too many regional conditions on the NWPs is contrary to E.O. 
13274, Environmental Stewardship and Transportation Infrastructure 
Project Reviews. One commenter said that regional conditions should not 
be redundant with the requirements of other agencies, and the 
streamlining objective of the NWPs should be maintained.
    Regional conditions are necessary to account for regional 
differences in aquatic resource functions, services, and values and to 
ensure that the NWPs

[[Page 11099]]

authorize only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and other public 
interest review factors. Regional conditions are important tools for 
protecting endangered and threatened species, designated critical 
habitat for those species, essential fish habitat, historic properties, 
and other important resources. As a general matter, we agree that 
regional conditions should not duplicate the requirements of other 
agencies, but the Corps often has the responsibility to comply with 
other statutes and regulations administered by other agencies.
    Two commenters said that there needs to be clearer rules for the 
adoption of regional conditions for the NWPs. A couple of commenters 
indicated that districts need to provide justifications for proposed 
regional condition, and make that information available to the public. 
Three commenters said that regional conditions should not be limited to 
further restricting the use of the NWPs. One commenter said that 
regional conditions should not be based on district boundaries. 
Instead, they should be based on ecoregions or other ecologically-
delineated areas. Another commenter recommended that the Corps work 
with other agencies to develop a list of high value wetlands in which 
NWPs cannot be used.
    Regional conditions may only further condition or restrict the 
applicability of an NWP (see 33 CFR 330.1(d)). In areas where 
environmental conditions and other circumstances warrant less 
restrictive general permit conditions, district engineers may issue 
regional general permits to authorize similar activities, as long as 
those general permits meet applicable requirements. The regulations 
governing the adoption of regional conditions are provided at 33 CFR 
330.5(c). We believe it is necessary to provide flexibility to division 
engineers to determine the necessity and appropriateness of regional 
conditions to address concerns regarding the use of NWPs in a 
particular area. The notices issued by Corps districts soliciting 
public comment on proposed regional conditions are required to include 
statements concerning the environmental factors or other public 
interest factors resulting in the need for regional conditions (see 33 
CFR 330.5(c)(1)). Regional conditions may be based on geographic areas 
other than district boundaries. Regional conditions may be imposed on 
the use of NWPs in watersheds, counties, states, ecoregions, or other 
types of areas. General condition 19, designated critical resource 
waters, provides a national list of high value waters. Districts can 
coordinate with other agencies to develop lists of high value wetlands 
within their district boundaries.

Data Collection

    One commenter said that the supporting data used by the Corps falls 
short of the standards required by the Data Quality Act of 2001, and 
the Office of Management and Budget's ``Guidelines for Ensuring and 
Maximizing the Quality, Objectivity, Utility, and Integrity of 
Information Disseminated by Federal Agencies.'' This commenter stated 
that the Corps should provide data on aquatic resource functions to 
support its minimal impact determinations.
    The data used for the NWP decision documents are the best available 
data at a national scale. The estimated impacts and mitigation provided 
in the decision documents were developed by reviewing and analyzing 
permit data from our district offices, as well as through consideration 
of how proposed changes to the NWPs would affect the amounts of 
authorized impacts and mitigation. Data on aquatic resource functions 
is generally not available. The National Wetland Inventory examines 
wetland status and trends for the conterminous United States, but 
information on wetland quality and function is not available.
    Three commenters expressed concern about tracking permanent and 
temporary impacts to waters of the United States and recommended that 
the Corps implement a national tracking and monitoring system. This 
system would also facilitate the sharing of information with 
cooperating resource agencies and help improve decision making.
    We are in the process of transitioning to a new automated 
information system (AIS) for the Corps regulatory program. The new AIS 
is version 2.0 of the ``OMBIL Regulatory Module'' (ORM 2.0). This 
national tracking and monitoring system will improve and standardize 
data collection for the Corps regulatory program, and will assist in 
decision-making for permit actions and other types of regulatory 
activities, such as jurisdictional determinations. ORM 2.0 will be 
spatially enabled, using geographic information systems and other 
analytical tools that will provide more efficient and effective 
processing of permit applications, jurisdictional determinations, and 
other tasks. Cumulative impact analysis will also be supported by ORM 
2.0. The structure of ORM 2.0 will also be standard among Corps 
districts, providing for more consistent information collection and 
storage, and will be readily available for analysis and reporting. The 
standard structure of ORM will also promote consistency in Regulatory 
Program implementation.
    ORM 2.0 will help improve data collection for the NWP program, as 
well as other types of permits issued by the Corps. Data collection 
will be more standard among permit types, especially for impact and 
mitigation data. We will continue to collect data on authorized losses 
of waters of the United States, including resource type, acreage, and 
impact type. ORM 2.0 incorporates several additional AIS resources to 
assist in the tracking of all required compensatory mitigation, 
including the amount, type (e.g., reestablishment), and source (i.e., 
permittee-responsible mitigation, mitigation bank, or in-lieu fee).
    ORM 2.0 will also facilitate compliance with the Endangered Species 
Act, the National Historic Preservation Act, and the essential fish 
habitat provisions of the Magnuson-Stevens Fishery Management and 
Conservation Act. Screening tools based on available data for those 
resources will help Corps personnel identify activities that may affect 
those resources and require further consultation. The available 
resource data will be provided by other agencies, through data sharing 
agreements. Available data sets from the national, state, and local 
levels can be utilized by ORM 2.0.
    ORM 2.0 is capable of supporting electronic interagency 
coordination. For activities that typically require interagency 
coordination and consultation, agencies will have the option of 
receiving electronic coordination notices and consultation requests and 
of responding to the Corps via a link to ORM 2.0. Agencies will be 
required to enter into a Memorandum of Agreement supporting the use of 
electronic communications for permit activities.
    ORM 2.0 will also include time tracking features to help remind 
Corps project managers when the end of the 45-day pre-construction 
notification review will occur. Monitoring and enforcement activities 
will also be supported by ORM 2.0, including the tracking of when 
monitoring reports for compensatory mitigation projects are due.
    ORM 2.0 will also support an electronic permit application, thereby 
allowing prospective permittees to submit their pre-construction 
notifications electronically to the appropriate Corps district. Permit

[[Page 11100]]

applicants will be able to check the status of their permit 
applications through the electronic permit Web site.

Other Issues

    One commenter said that the Corps should stop issuing NWPs until 
effective compensatory mitigation is provided for those permits. 
Several commenters stated that the Corps places too much reliance on 
compensatory mitigation, citing recent studies that concluded that 
compensatory mitigation projects often fail to achieve their 
objectives. A couple of commenters asserted that the Corps should not 
rely on compensatory mitigation to ensure minimal individual and 
cumulative adverse effects. Another commenter objected to the more 
stringent requirements for compensatory mitigation for NWP activities, 
stating that compensatory mitigation for small impacts tends to be more 
expensive than the costs to plan and construct the proposed activity 
requiring NWP authorization.
    Compensatory mitigation is an important mechanism to help ensure 
that the NWPs authorize activities that result in minimal individual 
and cumulative adverse effects on the aquatic environmental. We 
acknowledge that the ecological success of compensatory mitigation 
projects varies widely. Some compensatory mitigation projects fail to 
meet their objectives, while others do result in successful replacement 
of aquatic resource functions that are lost as a result of activities 
authorized by NWPs. We are committed to improving compliance for 
compensatory mitigation required for Department of the Army permits, 
including NWPs. District engineers have the flexibility to determine 
when compensatory mitigation should be required for activities 
authorized by NWPs. If it is not appropriate or practicable to require 
compensatory mitigation for a particular activity, and that activity 
will result in minimal adverse effects on the aquatic environment, then 
the district engineer may determine that compensatory mitigation is not 
necessary. Otherwise, if the proposed activity will result in more than 
minimal adverse effects on the aquatic environment after determining 
that compensatory mitigation is not appropriate or practicable, then an 
individual permit would be required.
    One commenter said that the NWPs do not distinguish between 
different types of waters, but combine waters when applying the acreage 
limit for the NWP. This commenter stated that the Corps needs to 
recognize that different types of waters often have different 
functions.
    The NWPs do recognize different types of waters. The terms and 
conditions of NWPs are often based on the characteristics of different 
types of waters. For example, NWP 39 does not authorize discharges of 
dredged or fill into non-tidal wetlands adjacent to tidal waters.
    One commenter said that the requirement for NWP activities to be 
single and complete projects should not be removed, citing the proposed 
changes to NWPs 13, 15, 18, and 19. This commenter stated that the 
requirement for single and complete projects does not appear outside of 
the Corps definition at 33 CFR 330.2(i). One commenter objected to the 
removal of the requirement in several NWPs to submit an avoidance/
minimization statement with the pre-construction notification.
    The requirement that NWPs authorize single and complete projects 
applies to all NWPs. Limiting the NWPs to authorize only single and 
complete projects is a long-standing practice, and we are adding a new 
general condition (GC 28) to clarify that the NWPs only authorize 
single and complete projects.
    The requirement for an avoidance/minimization statement that was in 
NWPs 39, 43, and 44 is not necessary, because we have modified NWP 39 
to require pre-construction notification for all activities, and we are 
requiring pre-construction notification for all construction and 
expansion of storm water management facilities under NWP 43. In 
addition, general condition 20 requires permittees to avoid and 
minimize adverse effects to waters of the United State to the maximum 
extent practicable on the project site. When reviewing a pre-
construction notification, the district engineer will determine whether 
sufficient avoidance and minimization of impacts to waters of the 
United States has occurred, and whether the activity complies with 
general condition 20. It is the responsibility of the district engineer 
to make this determination, and we do not believe it is appropriate to 
place that burden on the prospective permittee by requiring the 
submittal of